MEMORANDUM OPINION ORDER
JOSEPH GOODWIN, District Judge
Pending before the court is the plaintiff's Motion to Remand Case to the Circuit Court of Putnam County. For the reasons discussed below, this Motion is GRANTED. This case is REMANDED to the Circuit Court of Putnam County.
I. Factual and Procedural Background
The plaintiff filed the Complaint in the Circuit Court of Putnam County on August 3, 2009. (Notice Removal [Docket 1], Ex. 1 ("Compl.").) This case is one of over a hundred parallel personal injury actions (collectively, the "Parallel Litigations"), filed by the plaintiff's counsel, seeking damages based on defendant Monsanto Company's ("Monsanto") alleged unlawful disposal of dioxin and furan waste material at its Nitro, West Virginia plant site, and the defendants' alleged failure to control this contamination. The plaintiff asserts that exposure to the contamination caused the plaintiff to develop cancer.
The Complaint states that the Nitro plant was owned and operated by the former Monsanto Company — "Old Monsanto" — "until its pupation into one of more of the herein named defendants," including "New Monsanto," approximately "sometime during and after . . . 1997." (Compl. ¶ 19.) This Order will simply refer to "Monsanto" rather than distinguish between the company's iterations.
According to the plaintiff, Monsanto owned and operated a chemical plant near Nitro from approximately 1934 to approximately 2000. (Compl. ¶¶ 3-4.) The plaintiff alleges that Monsanto produced an agricultural herbicide — 2, 4, 5 — trichlorophenoxyacidic acid ("2, 4, 5-T") — "which was heavily contaminated with dibenzo dioxins and dibenzo furans." The plaintiff further asserts that, beginning in 1949, Monsanto "began to dispose of dioxin-contaminated waste . . . in a manner which caused dioxins/furans to escape into the atmosphere contaminating the air in and around the areas" where the plaintiffs live. ( Id. ¶ 4.) More specifically, the plaintiff claims "[t]he production of dioxin contaminated 2, 4, 5-T continued 7 days a week 365 days a year from 1949 to approximately 1971 at the Monsanto Nitro Plant. During this entire time period, dioxin-contaminated wastes were burned, 7 days a week, in an open 20 feet by 40 feet pit on the plant site as well as at off-site dumps . . . causing dioxin/furans-contaminated particulate matter to contaminate the air and property in Nitro and surrounding areas." ( Id. ¶ 31.)
The plaintiff brings claims against each of the defendants — Monsanto; Pharmacia Corporation; Flexsys America Company; Flexsys America L.P.; Apogee Coal Company, LLC; and Solutia Inc. — "as successors to the dioxins/furans related legacy liabilities" of Monsanto. ( Id. ¶ 5.) In relevant part, the plaintiff alleges that defendant Apogee Coal Company, LLC ("Apogee") is a successor to the liabilities of companies that owned or controlled Monsanto's waste disposal site. The plaintiff further maintains that contaminated waste from Monsanto's Nitro plant was "disposed of and burned all with the permission and knowledge of such predecessor companies." ( Id. ¶ 74.) The plaintiff asserts that Apogee is a West Virginia corporation, and that when the Complaint was filed, Apogee's principal place of business was Charleston, West Virginia. ( Id.)
The defendants removed the Parallel Litigations to this court on December 13, 2009, pursuant to 28 U.S.C. §§ 1332 and 1442.
The plaintiff subsequently filed the Motion to Remand on June 19, 2010
II. Standard
A Notice of Removal need only contain "a short and plain statement of the ground of removal"; the pleading standard is the same as that imposed on a plaintiff in drafting an initial complaint. Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 199-200 (4th Cir. 2008). But when challenged, "`[t]he party seeking removal bears the burden of demonstrating that removal jurisdiction is proper.'" Id. (quoting In re Blackwater Sec. Consulting, LLC, 460 F.3d 576, 583 (4th Cir. 2006)); see also Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 816 (4th Cir. 2004) ("The burden of demonstrating jurisdiction resides with `the party seeking removal.'" (quoting Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994))). Congress intended to "restrict removal and to resolve all doubts about the propriety of removal in favor of retained state court jurisdiction." Marshall v. Manville Sales Corp., 6 F.3d 229, 232 (4th Cir. 1993). Courts must construe removal jurisdiction strictly "because of the `significant federalism concerns' implicated." Dixon, 369 F.3d at 816 (quoting Mulcahey, 29 F.3d at 151). "Therefore, `[i]f federal jurisdiction is doubtful, a remand [to state court] is necessary.'" Id.
III. Analysis
The defendants argue that removal of this case is proper on two separate grounds. First, the defendants assert that complete diversity of citizenship exists between the parties. The parties agree that the plaintiffs are citizens of West Virginia, and that all of the named defendants, except Apogee, are citizens of other states. The parties disagree, however, over the citizenship of defendant Apogee. Furthermore, the defendants assert that even if Apogee is a West Virginia citizen, the plaintiff's inclusion of Apogee as a defendant constitutes fraudulent joinder, because the plaintiff lacks any basis for asserting the facts underlying the claim against Apogee.
Second, the defendants assert that removal was proper under the federal officer removal statute, 28 U.S.C. § 1442. That statute permits removal of actions against "[t]he United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, sued . . . for any act under color of such office." 28 U.S.C. § 1442. Defendants assert that Monsanto's Nitro plant was engaged primarily in the business of manufacturing 2, 4, 5-T on behalf of the federal government and that removal under § 1442 was proper.
The defendants also asserted that the plaintiff's right to relief "necessarily depends on resolution of a substantial question of federal law," Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 808 (1988) (quoting Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983)), which establishes federal jurisdiction pursuant to 28 U.S.C. § 1331. After this ground was challenged by the plaintiff's motion to remand, the defendants abandoned it.
As explained below, both of the defendants' removal arguments fail. Remand of this case to the Circuit Court of Putnam County is therefore warranted.
A. The defendants have not established that Apogee is not a citizen of West Virginia.
Federal diversity jurisdiction requires that every defendant be completely diverse from every plaintiff. 28 U.S.C. § 1332. The "crucial date" for the determination of Apogee's citizenship in this case is the date the Complaint was filed — August 2, 2009. See Mullins v. Beatrice Pocahontas Co., 489 F.2d 260, 261 (4th Cir. 1974). Diversity jurisdiction here depends on whether Apogee was a West Virginia citizen on August 2, 2009.
A corporation is "a citizen of any State by which it has been incorporated and of the State where it has its principal place of business." 28 U.S.C. § 1332(c)(1). The parties agree that for purposes of determining jurisdiction, Apogee's citizenship is determined by the citizenship of its sole corporate member, Magnum Coal Company ("Magnum"). Magnum is incorporated in Delaware. Its "principal place of business" however is in dispute. The plaintiff's Complaint alleges that Apogee is a West Virginia corporation, and that on the date the Complaint was filed, Apogee's principal place of business was located in Charleston, West Virginia. (Compl. ¶ 74.) In their Notice of Removal, the defendants claim that Magnum [and thereby Apogee] "is a citizen of Delaware and possibly also a citizen of Missouri, . . . not West Virginia." (Notice Removal ¶ 14.)
Defendants present two arguments to support their assertion that Magnum (and thereby Apogee) is not a West Virginia citizen. First, they argue that Magnum might qualify as an inactive corporation without a principal place of business. In that circumstance, Magnum should only be considered a citizen of its state of incorporation: Delaware. Second, they argue that if Magnum does have a principal place of business, it is in Missouri, not West Virginia. I will address each argument in turn.
1. Magnum is not an inactive corporation.
The defendants, citing Athena Automotive, Inc. v. DiGregori, 166 F.3d 288, 291 (4th Cir. 1999), argue that Magnum might qualify as an inactive corporation, and, as such, "might appropriately be considered a citizen only of its state of incorporation, Delaware." (Notice Removal ¶ 14.) To qualify as an inactive corporation, a business must "cease[] all operations," and enough time must pass for "the continuing impact of its business" to dissipate. Athena Auto., Inc., 166 F.3d at 291. "[A]s a general matter, an `inactive' corporation (that is, a corporation conducting no business activities) has no principal place of business, and is instead a citizen of its state of incorporation only." Midlantic Nat'l Bank v. Hansen, 48 F.3d 693, 696 (3d Cir. 1995).
To support their argument that Magnum is an inactive corporation, the defendants state that Magnum has no employees and "serves merely as one of several intermediary entities" through which another company "owns and controls its national mining operations." (Notice Removal ¶ 13.) The facts do not support this argument. The defendants admit that Magnum holds a lease of office space in Charleston, and collects payments from a coal purchaser. Furthermore, the defendants concede that, unlike the plaintiff in Athena Automotive, Magnum was not totally inactive at the time the Complaint was filed, stating that Magnum's presence in West Virginia "since January 1, 2009, has been . . . to the almost total exclusion of any substantive activity." ( Id. ¶ 13 (emphasis added).). Nevertheless, the defendants request the court to "apply the same principles to reach the same result," due to Magnum's "dearth of activity." ( Id. 6 n. 7.)
I decline this invitation. Magnum continued to conduct some business activities at the time the Complaint was filed, and thus was not an inactive corporation. Magnum was therefore a citizen both of its state of incorporation, Delaware, and its principal place of business. I will now address defendants' second argument, that Magnum's principal place of business was located outside of West Virginia.
2. The defendants have not demonstrated that Magnum's principal place of business is outside of West Virginia.
A corporation's principal place of business is "the place where a corporation's officers direct, control, and coordinate the corporation's activities." Hertz Corp. v. Friend, 130 S. Ct. 1181, 1192 (2010) "And in practice it should normally be the place where the corporation maintains its headquarters — provided that the headquarters is the actual center of direction, control, and coordination, i.e., the `nerve center,' and not simply an office where the corporation holds its board meetings." Id.
The defendants argue that Magnum's principal place of business at the time the Complaint was filed (insofar as Magnum had a principal place of business) was Missouri. As evidence, the defendants offer the following:
• On July 23, 2008, Magnum became a wholly owned subsidiary of Patriot Coal Corporation, which is headquartered in St. Louis, Missouri;
• Magnum's corporate records are kept in St. Louis, Missouri;
• The written consents, which have supplanted Magnum's shareholder and directors' meetings, are in St. Louis, Missouri;
• Seven of Magnum's ten corporate officers, and two of its three directors, had offices exclusively in St. Louis, Missouri.
(Resp. Opp'n Mot. Remand [Docket 24], Ex. V, Affidavit of Lawrence I. Bell, July 2, 2010 ¶¶ 1, 4, 5, 6, 7.)
The defendants assert that Magnum's presence in West Virginia since January 1, 2009, "has been in form only — it held a pre-2008 lease of office space in Charleston, West Virginia but did not pay the rent and did not occupy the space." (Resp. Opp'n Mot. Remand 12 n. 3.) According to the defendants, "[a] signature of a lease left over from an earlier time and a bank account set up strictly to collect on a single, old debt do not make [. . .] the locus of decision making and control center of corporate affairs" in West Virginia. ( Id. at 13.)
The plaintiff rejects the defendants' assertion that Magnum's principal place of business was Missouri. The plaintiff submits that in April 2009, Magnum admitted in another case before this court that its principal office was located in Charleston, West Virginia. Furthermore, the plaintiff asserts that Magnum certified to the West Virginia Secretary of State, in its Annual Report filed March 17, 2010, that its principal office is in Charleston, West Virginia. (Mem. Supp. Mot. Remand [Docket 20] 4, 6 (citing Answer to Amended Complaint ¶ 3, McNeal v. Brook Trout Coal, LLC, No. 09-306 (S.D. W. Va. Apr. 6, 2009)).) The plaintiff also argues that the defendants have not explained what Magnum's principal business activity is, or how that activity is directed or controlled. (Reply Resp. Opp'n [Docket 27] 3.)
Magnum's admission in April 2009 that its "principal office" was located in Charleston, West Virginia does not prove that Magnum is a citizen of West Virginia. The admission pertains to "all times complained of" in the complaint in that case. The original complaint in that case was filed December 8, 2008; the amended complaint was filed March 5, 2009; and the complaint concerns contracts that were entered into prior to February 2007. Magnum's admission in April 2009 is irrelevant to this case.
Magnum's corporate filings merit closer scrutiny. In Magnum's 2011 Corporation Annual Report, filed on March 17, 2010, it lists its "Home State" as Delaware and its charter type as "foreign," but its "Principal Office" as located in Charleston, West Virginia. It also lists its President and one of its two Directors as Paul H. Vining, with an office in Charleston, West Virginia. (Reply Resp. Opp'n, Ex. 1.) Magnum's Vice President, Secretary, Treasurer, and second Director are listed with Missouri addresses. The 2010 Limited Liability Company Annual Report for a "Magnum Coal Sales LLC" lists the same Charleston, West Virginia "Principal Address," but also lists West Virginia as its "Home State" and its charter type as "domestic." ( Id. at 3).
The relationship between Magnum Coal Company and Magnum Coal Sales, LLC is unclear. The filings suggest that the former, at least, is subject to some control from Missouri. Nevertheless, both listed the location of their "Principal Office" as Charleston, West Virginia. The term "Principal Office" suggests that Magnum is directed, controlled, and coordinated from that location. The forms allow companies to list a "Principal Office," "Mailing Address," and, crucially, a "Local Office," strongly suggesting that "Principal Office" refers to the company's overall "nerve center," and not simply its principal in-state office.
The burden of establishing federal jurisdiction falls on the party seeking removal. See Dixon v. Coburg, 369 F.3d at 816 (citations omitted). The defendants have failed to establish the state in which Magnum's principal place of business is located. Although Magnum appears to be subject to some control from Missouri, the defendants have not explained what Magnum's principal business activity is and how and where such activity is effectively directed, controlled, and coordinated. At most, they have demonstrated that there is ambiguity surrounding Magnum's principal place of business — ambiguity that must be resolved against the defendants. See id.; Maggio-Onoranto Assocs., Inc. v. AEGON N.V., 104 F. Supp. 2d 518, 522 (D. Md. 2000). Considering all the evidence together, the defendants have not met their burden of establishing diversity jurisdiction.
3. Apogee Coal has not been fraudulently joined.
Having determined that the defendants have failed to show complete diversity, I must now address their argument that Apogee was fraudulently joined. To succeed in demonstrating fraudulent joinder, the defendants must show "that the plaintiff cannot establish a claim even after resolving all issues of law and fact in the plaintiff's favor." Hartley v. CSX Transp., Inc., 187 F.3d 422, 424 (4th Cir. 1999) (citation omitted). The removing party must demonstrate either "outright fraud in the plaintiff's pleading of jurisdictional facts" or that "there is no possibility that the plaintiff would be able to establish a cause of action against the in-state defendant in state court." Marshall v. Manville Sales Corp., 6 F.3d 229, 232 (4th Cir. 1993) (internal quotation marks omitted).
The plaintiff's claim against Apogee is premised on the allegation that Apogee is a successor to the liabilities of companies that owned or controlled Monsanto's waste disposal site, and that contaminated waste from Monsanto's Nitro plant was "disposed of and burned all with the permission and knowledge of such predecessor companies." (Compl. ¶ 74.) The defendants argue that the plaintiff lacks a basis to assert the facts which underlie its claim against Apogee, insofar as "Plaintiffs' Counsel lacks a reasonable evidentiary foundation for asserting that anyone . . . was burning dioxin-contaminated wastes at any time" at Monsanto's site near Nitro, West Virginia. (Notice Removal ¶ 20.) The defendants note that similar complaints filed by plaintiff's counsel, in Carter v. Monsanto Co., No. 3:08-cv-1359 (S.D.W.Va. Nov. 21, 2008), and Bibb v. Monsanto Co., No. 3:08-cv-1358 (S.D.W.Va. Nov. 21, 2008), do not mention the burning of dioxin-contaminated waste; the defendants also state that they are "unaware of any evidence of burning . . . unearthed through discovery in the related class actions upon which this allegation could properly be premised." ( Id. ¶ 21.) The defendants further assert that because plaintiff's counsel did not sue Apogee in the Bibb litigation or in a similar personal injury case recently filed in another federal court, Spaulding v. Monsanto, 1:09-cv-9470, they "[do] not actually believe that there exists a valid claim against Apogee." ( Id. ¶ 21, 9 n. 11.)
The plaintiff asserts in the Motion to Remand that there is evidence that the dumping of wastes "`caused large explosions and unusual chemical reactions'" at the site. (Mem. Supp. Mot. Remand 10 (quoting Order Denying Apogee Coal Company's Motion for Summary Judgment, Carter v. Monsanto, No. 00-C-300 (Cir. Court Putnam County, W. Va. Nov. 13, 2008)).) The plaintiff also argues that plaintiff's counsel's failure to sue Apogee in other cases is irrelevant. Nevertheless, the plaintiff points out that plaintiff's counsel "zealously (and successfully) opposed Apogee Coal's motion for summary judgment" in Carter "— when doing so was not necessary in order to maintain that matter in state (as opposed to federal) court." (Mem. Supp. Mot. Remand 11.)
The defendants have not met their burden of demonstrating fraudulent joinder. Whatever discrepancy might exist between evidence of "large explosions and unusual chemical reactions" and the Complaint's allegations of "burning" is insufficient to justify a finding of "outright fraud." If the allegations in the plaintiff's Complaint are true, the plaintiff will certainly be able to establish a cause of action against Apogee in state court. Furthermore, I agree with the plaintiff that it is irrelevant which defendants are being pursued in other litigation.
The defendants have failed to establish that diversity jurisdiction exists. The only possible remaining basis for this court's jurisdiction is under the federal officer removal statute, 28 U.S.C. § 1442. As laid out below, that jurisdictional basis is also faulty.
B. There is no causal nexus between any government control of the manufacturing of 2, 4, 5 — T and the defendants' waste disposal practices at the plant in Nitro.
Title 28 U.S.C. § 1442(a)(1) permits removal for suits against federal officers and persons "acting under" them, for their acts "under the color of such office." The defendants assert that Monsanto's Nitro plant, "[f]or many years within the time period pertinent to this case . . . was engaged primarily — and at times exclusively — in the business of manufacturing 2, 4, 5-T for inclusion in the military defoliant Agent Orange." (Notice Removal ¶ 24.) According to the defendants, Monsanto was compelled by the United States government to satisfy orders for 2, 4, 5-T, pursuant to detailed and precise specifications. The defendants argue that "[i]n light of the fact that Plaintiff seeks to hold Monsanto liable for injuries allegedly resulting, at least in part, from work performed by Monsanto at the behest of the federal government, there is removal jurisdiction over this action under 28 U.S.C. § 1442(a)(1)." ( Id. at ¶ 39.) The plaintiff argues that the federal government's involvement in the manufacture of 2, 4, 5-T is not relevant to this case, because the claims in the Complaint rest solely upon the defendants' waste disposal practices.
The shadow of prior litigation hangs over this issue. This court has considered the question of federal officer removal jurisdiction in two class action litigations very similar to this case: Bibb v. Monsanto Co., No. 3:08-cv-1358 (S.D.W.Va. Nov. 21, 2008), and Carter v. Monsanto Co., No. 3:08-cv-1359 (S.D.W.Va. Nov. 21, 2008). In Bibb, this court found that the plaintiffs alleged that they suffered harm from "the collective and continuous operation of the Nitro Plant in producing 2, 4, 5-T, including production, disposal, and any other process that was part of the plant operation, [and] led to the emission of the dioxins/furans." (Order Granting in Part and Denying in Part Plaintiffs' Motion to Remand at 27, Bibb v. Monsanto Co., No. 3:08-cv-1358 (S.D.W.Va. Dec. 19, 2008).) This court found that "plaintiffs' claims include those based on production processes controlled by the federal government," and concluded that removal would have been proper had it been timely effected. ( Id.) In Carter, however, this court concluded that the plaintiffs' claims arose solely from the defendants' disposal of 2, 4, 5-T waste, which occurred without federal involvement. Carter v. Monsanto Co., 635 F. Supp. 2d 479, 497 (2009). This court thus remanded Carter to state court, because there was no "causal nexus between the federal control over the manufacturing at the Nitro Plant and the acts underlying the instant action." Id. This court held that defendants could "not establish a basis for federal officer removal unless the defendants disposed of the 2, 4, 5-T waste under the direct and detailed control of the federal government or in furtherance of a specific request by a federal officer." Id.
The defendants argue that this case is distinguishable from Carter because the plaintiff's injuries allegedly arise from "generalized, airborne dioxin" rather than the "waterborne dioxin contamination" at issue in Carter. (See Mem. Opp. Mot. Remand at 18). The crucial issue is not the type of contamination, but whether the plaintiff alleges harms caused by processes controlled by the federal government or harms caused by processes controlled by the defendants alone. Carter, 635 F. Supp. 2d at 495 — 97. The defendants have offered no allegations that the disposal practices at issue in this matter were "under the direct and detailed control of the federal government," or that they result from actions "in furtherance of a specific request by a federal officer," alleging only that the disposal practices created a different kind of contamination than the practices at issue in Carter. Id. at 497.
Both the Carter plaintiffs and the instant plaintiff focus solely on injuries caused by the defendants' disposal practices. (Compl. ¶ 2.) Accordingly, no causal nexus exists in either Carter or in this case between the federal government's control of manufacturing and the actions underlying the plaintiff's Complaint. The defendants' removal under § 1442 was improper.
IV. Conclusion
For the reasons discussed above, the plaintiff's motion to remand is GRANTED and this case is REMANDED to the Circuit Court of Putnam County, West Virginia.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented parties.
ENTER: September 29, 2010
guson.
See,
e.g., Mickle v. Morin, 297 F.3d 114, 122 (2d Cir. 2002) (noting that it is "well established that the use of excessive force in the course of an arrest is constitutionally prohibited"). Therefore, Plaintiff's Section 1983 excessive force claim turns on whether it was objectively reasonable for Defendant Mika to use the amount of force that he used.
With regard to that issue, the Second Circuit has made clear that, "[w]here the circumstances are in dispute, and contrasting accounts present factual issues as to the degree of force actually employed and its reasonableness, a defendant is not entitled to judgment as a matter of law on a defense of qualified immunity." Mickle, 297 F.3d at 122 (internal citations and quotation marks omitted). Based on the conflict between the account of events presented by Plaintiff (described above) and the account of events presented by Defendant Mika (described below, in Part I.B. of this Decision and Order), the Court concludes it is simply not possible to determine whether Defendant Mika reasonably believed that his force was not excessive. Thomas v. Roach, 165 F.3d 137, 144 (2d Cir. 1999).
See also Robison, 821 F.2d at 924 ("[T]he parties have provided conflicting accounts as to [who] initiated the use of force, how much force was used by each, and whether [the arrestee] was reaching toward [a weapon]. Resolution of credibility conflicts and the choice between these conflicting versions are matters for the jury and [should not be] decided by the district court on summary judgment.").
For these reasons, Plaintiff's excessive force claim survives Defendants' motion for summary judgment.
B. Plaintiff's Claims of False Arrest and False Imprisonment
As stated above in Part I.C. of this Decision and Order, Defendants seek the dismissal of Plaintiff's false arrest and false imprisonment claims because (1) Plaintiff has failed to adduce admissible record evidence from which a rational factfinder could conclude that Ferguson was falsely arrested and falsely imprisoned, and (2) Defendant Mika is protected from liability as a matter of law by the doctrine of qualified immunity.
Based on the current record, the Court rejects Defendants' first argument. "To establish a claim for false arrest or false imprisonment under 42 U.S.C. § 1983, a plaintiff must show that `the defendant intentionally confined him without his consent and without justification.'" McMillan v. City of New York, 03-CV-0626, 2009 WL 261478, at *7 (E.D.N.Y. Feb. 4, 2009) (quoting, inter alia, Escalera v. Lunn, 361 F.3d 737, 743 [2d Cir. 2004]). "The existence of probable cause to arrest constitutes justification and `is a complete defense to an action for false arrest,' whether that action is brought under state law or under § 1983." Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (internal citations omitted); see also Broughton v. State, 37 N.Y.2d 451, 456-57 (N.Y. 1975) (noting that a plaintiff will prevail on a claim of false arrest under New York law if he can show that the arrest was not privileged, i.e., not based on probable cause). "[P]robable cause to arrest exists when the officers have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime." Weyant, 101 F.3d at 852. In addition, "a claim for false arrest turns only on whether probable cause existed to arrest a defendant[;] . . . it is not relevant whether probable cause existed with respect to each individual charge, or, indeed, any charge actually invoked by the arresting officer at the time of arrest." Jaegly v. Couch, 439 F.3d 149, 154 (2d Cir. 2006). "Stated differently, when faced with a claim for false arrest," this Court must "focus on the validity of the arrest and not on the validity of each charge." Jaegly, 439 F.3d at 154.
"A section 1983 claim for false arrest is substantially the same as a claim for false arrest under New York law." Jenkins, 478 F.3d at 84 (citing Weyant, 101 F.3d at 852).
Here, Ferguson was arrested for obstructing governmental administration and criminal possession of a controlled substance, seventh degree. Under New York Penal Law § 195.05, "A person is guilty of obstructing governmental administration when he intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference. . . ." Under New York Penal Law § 220.03, "A person is guilty of criminal possession of a controlled substance in the seventh degree when he knowingly and unlawfully possesses a controlled substance."
For the sake of brevity, the Court will not repeat Ferguson's account of events, as summarized above in Part I.A. of this Decision and Order. The Court will note only that the account of events offered by Ferguson is in stark contrast to the account of events offered by Defendant Mika.
Specifically, in his deposition, Defendant Mika testified as follows: (1) on January 11, 2007, while sitting in his patrol vehicle, he observed a man standing in the street, and leaning into the passenger window of a sedan that was blocking traffic; (2) he observed the man and the driver of the vehicle interact and shake hands inside the vehicle; (3) then he observed the man pull his head out of the passenger side window and straighten up, at which point he identified the man as Ferguson; (4) after the vehicle drove away, Defendant Mika stopped and exited his patrol vehicle in an effort to speak to Ferguson; (5) after seeing his patrol vehicle, Ferguson began to walk in the opposite direction; (6) Defendant Mika called out to Ferguson to come over and talk to him; (7) however, Ferguson continued to walk away; (8) moreover, while Ferguson was walking away, it appeared to Defendant Mika that Ferguson had in his hand some type of narcotic; (9) again, Defendant Mika called out for Ferguson to come over and talk to him; (10) however, Ferguson put his hand in his pocket and continued to walk away; (11) Defendant Mika became concerned that Ferguson may have had some type of weapon; (12) when Ferguson finally stopped, Defendant Mika attempted to engage Ferguson in a conversation; (13) Ferguson began mumbling and was unable to speak to him; (14) Defendant Mika called for back-up after it appeared to him that Ferguson had contraband in his mouth; (15) because Ferguson could not speak clearly, Defendant Mika tried to shine his flashlight into Ferguson's mouth; (16) however, as Defendant Mika did so, Ferguson pushed him away; (17) after being pushed by Ferguson, Defendant Mika took hold of Ferguson's sweatshirt and pulled him forward in an attempt to prevent him from swallowing any contraband; (18) after Defendant Mika took hold of Ferguson's sweatshirt, Ferguson fell to the ground; (19) after Ferguson fell to the ground, Defendant Mika perceived Ferguson to be in pain and called for EMS to come to the scene; and (20) Defendant Mika then secured Ferguson by placing handcuffs on him. (Dkt. No. 29, Attach. 1. [Defs.' Rule 7.1 Statement] [citing Dkt. No. 29, Attach. 9].)
Defendant Mika testified that he recognized the individual standing in the street as Ferguson based on his involvement in Ferguson's arrest for criminal trespass on October 24, 2006. (Dkt. No. 29, Attach. 9, at 22, 33.)
Defendant Mika testified that, although he was not aware of whether Plaintiff had any prior drug and/or felony convictions, Plaintiff was in an area considered to be "narcotics-prone." (Dkt. No. 29, Attach. 9, at 28, 37.)
Defendant Mika testified that he wanted to talk to Ferguson because he believed that Ferguson was involved in a drug transaction. (Dkt. No. 29, Attach. 9, at 28-29.)
Under the circumstances, it is impossible to determine whether Defendant Mika had probable cause to search and/or arrest Ferguson because several material facts are still in dispute. For example, among the conflicting portions of testimony are the following: (1) Defendant Mika testified that Ferguson stood in the street, leaning into the passenger side window of a car, while Ferguson testified that as soon as he exited the vehicle Defendant Mika pulled up; (2) Defendant Mika testified that Ferguson walked away from him when he repeatedly called out to Ferguson to stop, while Ferguson testified that he complied with Defendant Mika's first request to speak with him; (3) Defendant Mika testified that Ferguson put his hands in his pockets before approaching Defendant Mika, while Ferguson testified that he held his hands up in the air; (4) Defendant Mika testified that he attempted to shine a flashlight in Ferguson's mouth, while Ferguson testified that Defendant Mika never attempted to shine a flashlight in his mouth; (5) Defendant Mika testified that he grabbed Ferguson's sweatshirt because he had been pushed away by Ferguson, and that Ferguson fell to the ground because their legs became entangled, while Ferguson testified that Defendant Mika grabbed his sweatshirt because Defendant Mika found nothing in his mouth, and that he fell to the ground because Defendant Mika flipped him over; and (6) Defendant Mika testified that Ferguson had crack cocaine in his mouth, which he swallowed, while Ferguson testified that he had gum in his mouth.
As a result, this Court cannot find, as a matter of law, that Defendant Mika had probable cause to arrest Ferguson for obstructing governmental administration and/or criminal possession of a controlled substance. See Potenza v. Gonzales, 07-CV-0225, 2010 WL 2680236, at *2-6 (N.D.N.Y. July 1, 2010) (Mordue, C.J.) (holding the court could not conclude as a matter of law that an officer had probable cause to arrest an individual where there were numerous disputed facts); Searless v. Pompillo, 652 F. Supp. 2d 432, 439 (S.D.N.Y. 2009) (same); Esmont v. City of New York, 371 F. Supp.2d 202, 210 (E.D.N.Y. 2005) ("Probable cause to arrest for a violation of § 195.05 may be predicated on, amongst other things, obstructing a lawful search. Resisting an illegal search does not, however, constitute a violation of the statute.").
The Court recognizes that "[t]he lack of probable cause to stop and search does not vitiate the probable cause to arrest, because (among other reasons) the fruit of the poisonous tree doctrine is not available to assist a § 1983 claimant." Townes v. City of New York, 176 F.3d 138, 149 (2d Cir. 1999). Thus, even if a search is unlawful, if, during that search, an officer acquires probable cause to believe that a crime has been or is being committed, a § 1983 claimant's false arrest claim must fail. Townes, 176 F.3d at 149; see also Davenport v. County of Suffolk, 99-CV-3088, 2007 WL 608125, at *5 (E.D.N.Y. Feb 23, 2007). However, in this case, Defendant Mika did not recover drugs from Ferguson's person prior to arresting him, and what Ferguson had in his mouth remains in dispute. Thus, it cannot be said, as a matter of law, that Defendant Mika had probable cause to arrest Ferguson after checking (or attempting to check) the inside of his mouth.
Furthermore, based on the current record, the Court rejects Defendants' second argument i.e., his argument that Defendant Mika is protected from liability as a matter of law by the doctrine of qualified immunity. As explained above in Part I.A. of this Decision and Order, a police officer is entitled to qualified immunity where (1) his conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known, or (2) it was objectively reasonable for him to believe that his actions were lawful at the time of the challenged act. Here, there is no rational dispute as to whether the right to be free from arrest without probable cause was "clearly established" at the time of Ferguson's arrest. Therefore, Plaintiff's Section 1983 false arrest claim turns on whether the probable cause determination of Defendant Mika was objectively reasonable.
"An officer's determination is objectively reasonable if there was `arguable' probable cause at the time of arrest-that is, if `officers of reasonable competence could disagree on whether the probable cause test was met.'" Jenkins, 478 F.3d at 87 [internal quotations and other citations omitted]. "[U]nder both New York and federal law, summary judgment dismissing a plaintiff's . . . claim is [not] appropriate if . . . on the undisputed facts the officer would be unreasonable in concluding probable cause existed, or if the officer's reasonableness depends on material issues of fact. . . ." Jenkins, 478 F.3d at 88; see also Zellner v. Summerlin, 494 F.3d 344, 377 (2d Cir. 2007) (if there is no probable cause to believe that the plaintiff broke the law, a subsequent arrest is unreasonable).
As observed by the Southern District of New York, "courts have upheld the constitutionality of searches of a suspect's mouth when the suspect has been properly detained under the Fourth Amendment." Singleton v. City of Newburgh, 1 F. Supp.2d 306, 313 (S.D.N.Y. 1998) (noting that "[t]he pertinent inquiry is whether the intrusion was reasonable under the circumstances") (collecting cases). As a result, Defendant Mika is entitled to qualified immunity as a matter of law only if it was objectively reasonable for him to conclude that he had probable cause to search Ferguson's mouth under the circumstances.
Here, despite the fact that Defendant Mika testified that various indicia of criminal activity existed before he searched Plaintiff's mouth, it is also undisputed that (1) Defendant Mika did not know the identity of the driver of the vehicle with whom Ferguson was interacting, (2) Defendant Mika did not see money exchanged between Ferguson and the driver of the vehicle, and (3) Defendant Mika was not aware of Ferguson's drug-related criminal history when he stopped Ferguson. In addition, the following facts remain in dispute: (1) whether Ferguson continued to walk away from Defendant Mika after Defendant Mika repeatedly called for him, or whether Ferguson approached Defendant Mika immediately after being summoned; (2) whether Defendant Ferguson searched Ferguson's person before asking Ferguson to open his mouth; (3) whether Ferguson allowed Defendant Mika to search his mouth; (4) whether Ferguson pushed Defendant Mika before being arrested; and (5) whether Defendant Mika saw crack cocaine or merely gum in Ferguson's mouth. Based on this record evidence, even assuming that Defendant Mika had the right to stop Ferguson and inquire about Ferguson's exchange with the driver of a vehicle, the Court is unable to conclude, as a matter of law, that it was objectively reasonable for Defendant Mika to attempt to search Ferguson's mouth.
(Dkt. No. 29, Attach. 9, at 37.)
( Compare Dkt. No. 29, Attach. 9, at 50-51 with Dkt. No. 29, Attach. 11, at 16-18, 24-26.)
( Compare Dkt. No. 29, Attach. 9, at 52-54 with Dkt. No. 29, Attach. 11, at 17.)
For these reasons, Plaintiff's false arrest and false imprisonment claims survive Defendants' motion for summary judgment.
C. Plaintiff's Municipal Liability Claim
As stated above in Part I.C. of this Decision and Order, Defendants seek the dismissal of Plaintiff's municipal liability claim because Plaintiff has failed to adduce any admissible evidence from which a rational factfinder could conclude that Ferguson was deprived of his constitutional rights as a result of a custom or policy implemented by Defendant City of Albany.
Based on the current record, the Court accepts Defendants' argument. Plaintiff adduces no record evidence that Defendant Mika's actions were carried out in execution of a governmental policy or custom. Instead, in support of her municipal liability claim, Plaintiff relies solely on the theory of respondeat superior. However, municipal liability "cannot result from a theory of respondeat superior; rather, it can be imposed only if the acts in question were carried out in `execution of a government's policy or custom.'" Thomas v. Roach, 165 F.3d 137, 145 (2d Cir. 1999) (quoting Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690).
The closest the Plaintiff comes is her contention that the City of Albany has an informal policy of "checking" people. (Dkt. No. 29, Attach. 13, ¶ 23.)
In fact, Plaintiff has acknowledges in her memorandum of law in opposition to Defendants' motion for summary judgment that "[t]here were no facts developed which would indicate that the City of Albany has a custom or policy, formal or informal of violating the civil rights of its citizens which would impose Monell-type liability." (Dkt. No. 38.)
For these reasons, Plaintiff's claim against the City of Albany is dismissed.
D. Plaintiff's False Arrest Claim Against Defendant John Doe
On March 14, 2008, Ferguson filed his original Complaint in this action, in which he named the following as Defendants: Jan Mika, individually and in his capacity as a City of Albany Police Officer; "John Doe," individually and in his capacity as a Captain of the City of Albany Police Department; and the City of Albany. (Dkt. No. 1.) On March 31, 2008, Ferguson's attorney filed notice with the Court regarding the death of his client. (Dkt. No. 4.) On November 5, 2008, the Court received notice that Angela Staley would be acting as the administrator of the estate of Ferguson. (Dkt. No. 16.) On December 17, 2008, Plaintiff filed her Amended Complaint, which asserts claims against the same three Defendants. (Dkt. No. 17.) Nonetheless, to date, Plaintiff has made no effort to identify Defendant "John Doe." Moreover, the deadline to file a Second Amended Complaint has long since passed, having expired on October 23, 2009. (Dkt. No. 22 [Uniform Pretrial Scheduling Order].)
The Court notes that, on April 2, 2008, Ferguson properly served Defendant "John Doe" at his actual place of business. (Dkt. No. 7.)
Rule 41 of the Federal Rules of Civil Procedure permits the Court to sua sponte dismiss an action for failure to prosecute. Fed.R.Civ.P. 41(b). The Second Circuit has held that it is within the trial judge's sound discretion to dismiss for want of prosecution. Furthermore, the Second Circuit has identified five factors that it considers when reviewing a district court's order to dismiss an action for failure to prosecute under Fed.R.Civ.P. 41(b):
Fed.R.Civ.P. 41(b) (providing, in pertinent part, that "[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it"); Saylor v. Bastedo, 623 F.2d 230, 238-239 (2d Cir. 1980) (recognizing that, under the language of Fed.R.Civ.P. 41[b], a district court retains the inherent power to dismiss a plaintiff's complaint, sua sponte, for failure to prosecute) [citations omitted]; accord, Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962), Theilmann v. Rutland Hospital, Inc., 455 F.2d 853, 855 (2d Cir. 1972); see also N.D.N.Y. L.R. 41.2(a) ("Whenever it appears that the plaintiff has failed to prosecute an action or proceeding diligently, the assigned judge shall order it dismissed.") [emphasis added].
See Merker v. Rice, 649 F.2d 171, 173 (2d Cir. 1981).
[1] the duration of the plaintiff's failures, [2] whether plaintiff had received notice that further delays would result in dismissal, [3] whether the defendant is likely to be prejudiced by further delay, [4] whether the district judge has taken care to strike the balance between alleviating court calendar congestion and protecting a party's right to due process and a fair chance to be heard and [5] whether the judge has adequately assessed the efficacy of lesser sanctions.
As a general rule, no single one of these five factors is dispositive.
See Nita v. Conn. Dep't of Env. Protection, 16 F.3d 482 (2d Cir. 1994).
Here, the Court finds that these five factors weigh in favor of dismissal. Specifically, the Court finds that the duration of Plaintiff's failure is some eleven months, i.e., from the expiration of the motion-to-amend deadline on October 23, 2009. The Court finds that Plaintiff-who is represented by counsel-has received adequate notice that this failure to name and/or serve the John Doe Defendant would result in dismissal. The Court finds that the John Doe Defendant, who has not ever been served or afforded the opportunity to conduct discovery in this matter, is likely to be prejudiced by a further delay. The Court finds that the need to alleviate congestion on the Court's docket outweighs Plaintiff's right to receive a further chance to be heard with regard to her claim against the John Doe Defendant in this matter. Finally, the Court has considered all less-drastic sanctions and finds them to be inadequate or inappropriate under the circumstances.
See Ruzsa v. Rubenstein Sendy Attys at Law, No. 07-0089, 2008 WL 706693, at *1 (2d Cir. March 17, 2008) (dismissing action, in part because of plaintiff's seven-month delay during prosecution of action); N.D.N.Y. L.R. 41.2(a) ("In the absence of any order by the assigned judge or magistrate judge setting any date for any pre-trial proceeding or for trial, the Plaintiff's failure to take action for four (4) months shall be presumptive evidence of lack of prosecution.").
This notice has come from the following: (1) Fed.R.Civ.P. 41(b); (2) Local Rule 41.2(a) of the Local Rules of Practice for this Court; (3) Fed.R.Civ.P. 4(m); (4) Local Rule 4.1(a), (b) of the Local Rules of Practice for this Court; and (5) Local Rule 5.1(f) of the Local Rules of Practice for this Court.
See, e.g., Geordiadis v. First Boston Corp., 167 F.R.D. 24, 25 (S.D.N.Y. 1996) ("The passage of time always threatens difficulty as memories fade. Given the age of this case, that problem probably is severe already. The additional delay that plaintiff has caused here can only make matters worse.").
The Court notes that it is cases like this one that delay the resolution of other cases, and that increase the Second Circuit's average time for the disposition of civil rights.
The Court notes that judges of this District have repeatedly reached the same conclusion in analogous cases. See, e.g., Brown v. Middaugh, 41 F. Supp.2d 172, 195 (N.D.N.Y. 1999) (Munson, J.) (dismissing plaintiff's claim against John Doe defendants for failure to prosecute where plaintiff's case was pending for over two years, plaintiff had not identified the "John Doe" defendants, and the time period to amend his complaint had passed) (citing N.D.N.Y. L.R. 41.2[a]); Clayton v. City of Kingston, 44 F. Supp. 2d 177, 182-83 (N.D.N.Y. 1999) (McAvoy, C.J.) (dismissing plaintiff's claim against "John Doe" defendants for failure to prosecute where plaintiff's case was pending for over two years, plaintiff had not identified the "John Doe" defendants, and the time period to amend his complaint had passed).
In the alternative, the Court finds that Plaintiff's claim against the John Doe Defendant should be dismissed on the ground that Plaintiff has violated Fed.R.Civ.P. 4(m), because she has not offered "good cause" for her failure to enable the Marshals Service to effect service on that Defendant. The Court notes that, under Fed.R.Civ.P. 4(m), the Court need not issue such an order only upon motion of defense counsel but may do so sua sponte. See Fed.R.Civ. 4(m) ("[T]he Court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time.").
See Waldo v. Goord, 97-CV-1385, 1998 WL 713809, at *5 (N.D.N.Y. Oct. 1, 1998) (Kahn, J.) (dismissing a claim under Fed.R.Civ. 4[m] where pro se plaintiff failed to serve John Doe defendants during the year that elapsed between filing of complaint and issuance of order of dismissal by court); Thomas v. Keane, 99-CV-4302, 2001 WL 410095, at * 1, 5 (S.D.N.Y. April 23, 2001) (dismissing claim under Fed.R.Civ. 4[m] where pro se plaintiff failed to serve John Doe defendants during the year that elapsed between filing of complaint and issuance of order of dismissal by court).
For these reasons, the Court sua sponte dismisses Plaintiff's claims against Defendant John Doe. ACCORDINGLY, it is
The Court notes that Plaintiff's claims against Defendant John Doe are dismissed for the alternative reason that Plaintiff has failed to offer any evidence that Defendant John Doe was involved in Plaintiff's arrest.
ORDERED that Defendants' motion for summary judgment (Dkt. No. 29) is GRANTED with regard to the following claims:
1. Plaintiff's municipal liability claim against the City of Albany; and
2. Plaintiff's false arrest claim against John Doe; and it is further
ORDERED that Defendants' motion for summary judgment is
DENIED with regard to the following claims:
1. Plaintiff's excessive force claim against Defendant Mika; and
2. Plaintiff's false arrest and false imprisonment claims against Defendant Mika; and it is further
ORDERED that the City of Albany and John Doe are
DISMISSED as Defendants in this action; and it is further
ORDERED that counsel are directed to appear on NOVEMBER 4, 2010 at 2:00 p.m. in chambers for a pretrial conference, at which counsel are directed to appear with settlement authority, and in the event that the case does not settle, trial will be scheduled at that time. Plaintiff is further directed to forward a written settlement demand to defendants no later than October 15, 2010, and the parties are directed to engage in meaningful settlement negotiations prior to the 11/4/10 conference.
Dated: September 29, 2010
Syracuse, New York