Summary
dismissing pendant state law claims "[a]s a matter of comity and respect for Tennessee courts' interest in ruling on matters of state law"
Summary of this case from Haynes v. Homeq Servicing CorporationOpinion
No. 01-2228 G/Bre
July 16, 2002
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON § 1983 CLAIM AND REMANDING STATE CLAIMS TO STATE COURT
Defendants Wal-Mart Stores, Inc., ("Wal-Mart") and Dob Johnson have filed motions to dismiss and for summary judgment. Because the court considers the motion for summary judgment and the record on that motion and grants summary judgment on the only federal claim, resolution of the motion to dismiss is unnecessary.
Plaintiffs Ella Barbee, Janice Lee, and Sheila Dillard filed suit on February 22, 2001, in the Circuit Court of Lauderdale County, Tennessee. The action was removed to this court on March 21, 2001. Plaintiffs seek damages under 42 U.S.C. § 1983, alleging that defendants violated their procedural due process rights under the Fourteenth Amendment to the United States Constitution. They also assert state claims of negligence, intentional and negligent infliction of emotional distress, false light, false arrest and imprisonment, fraud and misrepresentation, larceny by trick, and violations of the Consumer Protection Act, Tenn. Code Ann. § 47-18-101 et seq., and the Tennessee Human Rights Act, Tenn. Code Ann. § 4-21-301 et seq. The case arises out of an undercover law enforcement operation in which plaintiffs allegedly purchased Wal-Mart merchandise at prices below normal retail prices and were subsequently arrested and indicted for theft or receiving stolen property.
The undisputed facts relevant to the motion are as follows. Ronnie Winbush, a prisoner held in the jail in Bartlett, Tennessee, on pending charges of stealing from Wal-Mart, sought to help his own situation by giving information about others involved in stealing from Wal-Mart. Rick Jewell, supervisor of the Bartlett jail, notified Tennessee Bureau of Investigation ("TBI") Agent Jack Van Hoosier of Winbush's interest in cooperating. Van Hoosier arranged for TBI Agent Roger Turner to contact Jewell and interview Winbush. Winbush gave a sworn statement that Dillard, the City Recorder of Henning, Tennessee, and James Treadway, Henning Police Chief, were receiving merchandise they knew to be stolen. Winbush made calls to Treadway and Dillard during subsequent meetings with agents.
Many of the facts come from the Undisputed Chronology of Events filed by the parties on August 13, 2001.
After meeting with Winbush on the first occasion, Turner met with Dob Johnson, District Loss Prevention Supervisor for Wal-Mart, and discussed Wal-Mart's participation in a "sting" operation. Johnson and his supervisor, Hunter Eads, agreed to provide Wal-Mart merchandise for use in the operation. Johnson, Eads, and Turner requested the assistance of the Memphis Auto Cargo Task Force, a joint law enforcement effort which apparently includes representatives of the Memphis Police Department and other agencies.
The sting operation was carried out on February 18, 2000. Johnson and Eads participated, as did Fred Jones of the Memphis Police Department. During the operation, Winbush and Jones sold merchandise to Treadway, Dillard, Ella Barbee, and Janice Lee. Treadway, Dillard, Barbee, and Lee were arrested and charged with felony theft or receiving property over $500.00.
Barbee is Diliard's sister.
Subsequently, the Lauderdale County Grand Jury indicted Barbee for felony theft and Lee and Dillard for misdemeanor theft. By election of the prosecutor, the case ultimately proceeded to trial on misdemeanor charges of attempted theft as to all three plaintiffs. Plaintiffs, offering an entrapment defense, were acquitted of all charges.
Plaintiffs sued Johnson, Wal-Mart, Turner, the State of Tennessee, Jones, and the City of Memphis. They later agreed to the dismissal of all defendants except Johnson and Wal-Mart.
Stripped of much confusing hyperbole, the crux of plaintiffs' constitutional claims is that they were deprived of due process of law because they were arrested on theft charges when the facts could only have supported a charge of attempted theft and then were held on high bonds and were required to post bond, hire lawyers, and go to trial. Whatever the arguable merit of such claims, Johnson and Wal-Mart, as plaintiffs concede, had absolutely no role in determining the specific charges on which plaintiffs were arrested or indicted and no role in decisions concerning their bonds or prosecution. (See Tr. of Feb. 27, 2002 Telephone Conference at 16-17.)
The only aspect of the constitutional claim asserted against Johnson and Wal-Mart is that plaintiffs' constitutional due process rights were violated by the sting operation itself. Such a claim is dependent on a finding that Johnson and Wal-Mart were state actors for purposes of the operation. This finding is supported by the record, and Johnson and Wal-Mart do not contest the issue. The record does not support, however, plaintiffs' claim that the sting operation violated their constitutional rights.
Normally, constitutional protections are triggered only in the presence of state action, and a private entity acting on its own cannot deprive a citizen of constitutional rights. Lansing v. City of Memphis, 202 F.3d 821, 828 (6th Cir. 2000). "However, a private entity can be held to constitutional standards when its actions so approximate state action that they may be fairly attributed to the state." Id. The Sixth Circuit recognizes three tests to help determine whether a private entity may be considered a state actor: (1) the public function test; (2) the state compulsion test; and (3) the symbiotic relationship or nexus test. Id. Under number three, the nexus test, "`the action of a private party constitutes state action when there is a sufficiently close nexus between the state and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the state itself.'" Id. (citing Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir. 1992)). In this case, the court finds that defendant Johnson, as an agent of Wal-Mart, was intimately involved with the sting operation to the extent that his involvement created a sufficiently close nexus between the state and Wal-Mart so that Wal-Mart may be fairly treated as a state actor. As a basis for this finding, the court notes the following facts concerning Johnson's involvement in the sting operation: After speaking with Winbush in jail, TBI Agent Turner met with Johnson to discuss Wal-Mart's participation in the sting operation. (Undisputed Chronology of Events at 2). Johnson and his supervisor, Eads, agreed to supply Wal-Mart merchandise as props for the sting operation and requested the assistance of the Memphis Auto Cargo Task Force law enforcement agency. Id. Johnson then collected pieces of new Wal-Mart merchandise, transported them to Henning, Tennessee, where the sting operation took place, and, once in Henning, transferred merchandise to Winbush on February 18 and again on February 22. Id. at 2-3.
To the extent that plaintiffs' claim is that a sting operation is inherently unconstitutional, this argument is without merit. United States v. Payne, 962 F.2d 1228, 1232 (6th Cir. 1992) ("No court has ever stated that, as a matter of law, it is impermissible for the government to engage in `undercover' or `sting' operations."); see also United States v. Jenkins, 876 F.2d 1085, 1087 (2d Cir. 1989) ("Sting operations are inherently a dirty business. . . . Nevertheless, courts have long recognized that such operations are permissible, often necessary for effective law enforcement." (internal citations omitted)).
To the extent the claim is that the sting operation was unconstitutional as to these plaintiffs because they were ultimately found by a jury to have been entrapped, that argument also fails. Entrapment provides a legal defense to defendants in connection with criminal charges against them because it goes to negate the criminal defendant's intent to commit the crime. In the criminal context, the Sixth Circuit has made clear that criminal defendants cannot frame motions to dismiss their indictments in terms of due process when their actual defense consists of allegations of inducement to commit the crime. United States v. Branham, 97 F.3d 835, 852-853 (6th Cir. 1996); United States v. Tucker, 28 F.3d 1420, 1428 (6th Cir. 1994). The Sixth Circuit refuses to recognize such a due process defense because, as was stated in Tucker, this type of claim is really nothing more than an claim for entrapment, and, consequently, "a defendant whose defense sounds in inducement is, by congressional intent and Supreme Court precedent, limited to the defense of entrapment and its key element of predisposition." Tucker, 28 F.3d at 1428. In this case, plaintiffs attempt to use the fact that they were entrapped to show a constitutional due process violation for purposes of their § 1983 claim. However, in this case, as in the criminal context, allegations of entrapment alone do not support a due process claim. Accordingly, defendants' motion for summary judgment is granted with respect to plaintiffs' federal claim.
The two related elements necessary for an entrapment defense are: (1) government inducement of the crime; and (2) the criminal defendant's lack of predisposition to engage in criminal conduct. Mathews v. United States, 485 U.S. 58, 62-63 (1988).
Having disposed of plaintiffs' federal claim, the court now turns to plaintiffs' state common law claims of negligence, intentional and negligent infliction of emotional distress, false light, false arrest and imprisonment, fraud and misrepresentation, larceny by trick, and to plaintiffs' statutory claims pursuant to the Consumer Protection Act, Tenn. Code Ann. § 47-18-101 et seq., and the Tennessee Human Rights Act, Tenn. Code Ann. § 4-21-301 et seq. Before considering the substantive merits of any of these claims, however, the court must determine whether it has the authority to adjudicate them. "The validity of an order of a federal court depends upon that court's having jurisdiction over both the subject matter and the parties." Insurance Corp. of Ireland, Ltd. v. Compagne des Bauxites de Guinee, 456 U.S. 694, 701 (1982). Diversity jurisdiction does not exist in this case, and this court did not have original subject matter jurisdiction over the state claims raised by plaintiffs but, instead, had supplemental jurisdiction over them under 28 U.S.C. § 1367 because they arose out of the same nexus of facts as plaintiffs' federal claim. 28 U.S.C. § 1367(a) (promulgating that "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"). Now that the court has granted defendants' motion for summary judgment with respect to plaintiffs' federal claim, no claims remain over which this court has original jurisdiction. As a result, section 1367(c) permits the court to decline to exercise supplemental jurisdiction over the remaining claims.
Section 1367(c) provides in pertinent part that "[t]he district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if . . . the district court has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c)
In United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966), the United States Supreme Court addressed the situation at hand: "Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well." Id. at 726. The Court later altered this ruling, holding that dismissal was not mandatory, Rosado v. Wyman, 397 U.S. 397, 405 (1970), and that courts should consider factors such as "judicial economy, convenience, fairness, and comity" in making a decision. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988). Consequently, when Congress codified supplemental jurisdiction in 1990 with the passage of 28 U.S.C. § 1367, it "provide[d] that a district court `may' (rather than must) decline to exercise jurisdiction if `the district court has dismissed all claims over which it has original jurisdiction.'" Musson Theatrical, Inc. v. Federal Express Corp., 89 F.3d 1244, 1254 (6th Cir. 1996) (quoting 28 U.S.C. § 1367(c)(3)); see 28 U.S.C. § 1367 Practice Commentary (West 1993) (commenting that "judicial discretion here is a particularly important element," and thus "the `may' in `may decline' has a major role to play").
Nevertheless, in considering whether to dismiss supplemental state claims after the basis for federal jurisdiction over those claims has been removed, Sixth Circuit courts have tended to follow the path suggested by Gibbs, finding that pendent state claims should be "dismissed without prejudice once plaintiff's federal jurisdictional claim was held to be inappropriate." Bigelow v. Michigan Dep't of Natural Res., 970 F.2d 154, 160 (6th Cir. 1992); Whittington v. Milby, 928 F.2d 188, 194 (6th Cir. 1991); Collard v. Kentucky Bd. of Nursing, 896 F.2d 179, 184 (6th Cir. 1990). The Sixth Circuit explained in Musson that
[a]s a rule of thumb, . . . the Gibbs dictum remains valid. When all federal claims are dismissed before trial, the balance of considerations usually will point to dismissing the state law claims, or remanding them to state court if the action was removed.
Musson, 89 F.3d at 1254-55. In fact, the court of appeals has suggested that only "overwhelming interests in judicial economy may allow a district court to properly exercise its discretion and decide a pendent state claim even if the federal claim has been dismissed before trial." Aschinger v. Columbus Showcase Co., 934 F.2d 1402, 1412 (6th Cir. 1991).
In this case, plaintiffs' supplemental state law claims are either torts arising under Tennessee common law or Tennessee statutory violations. As a matter of comity and respect for Tennessee courts' interest in ruling on matters of state law, these claims rightfully belong in state courts. Gibbs, 383 U.S. at 726 ("Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law."). There are no pressing reasons relating to judicial economy, convenience, or fairness for this court to retain supplemental jurisdiction over them. See e.g., Wynn v. Morgan, 861 F. Supp. 622, 637 (E.D. Tenn. 1994) (refusing to exercise supplemental jurisdiction over state law claims of false arrest, false imprisonment, malicious prosecution, intentional infliction of emotional distress, outrageous conduct, negligence, and gross negligence after granting defendant summary judgment on plaintiff's § 1983 claims). As the court observed in Wynn, "[t]he courts of the State of Tennessee are certainly equally capable, if not more capable, of resolving traditional state law claims and of applying a state statute to a particular factual pattern than is a federal court." Id. Accordingly, this court declines to exercise supplemental jurisdiction over plaintiffs' state law claims and remands them to the Circuit Court of Lauderdale County.
IT IS SO ORDERED.