Opinion
Civil Action No. 3:00-CV-0863-D
May 4, 2001
ORDER
Defendants The Epilepsy Foundation ("the Foundation") moves to dismiss the amended complaint of plaintiff Bobby D. Sims ("Sims"). The court grants the motion.
The Foundation is proceeding under the name "Epilepsy Foundation of Greater North Texas." The court will refer to this party as "the Foundation."
On February 13, 2001 the court filed a memorandum opinion and order that granted the October 2, 2000 motions of the Foundation to dismiss Sims' claims against it pursuant to Fed.R.Civ.P. 12 for failure to state a claim and to dismiss Sims' claims defendant Patrick Tester ("Tester") pursuant to Rule 4(m). The court allowed Sims to replead his action against the Foundation. Sims filed an amended complaint on March 19, 2001. The Foundation filed on March 29, 2001 a motion to dismiss the amended complaint. Sims has not filed a timely response to the motion, and the court now grants it.
Sims — who alleges that he suffers from epilepsy — asserts that he unsuccessfully attempted to obtain assistance from the Foundation and Tester in his attempts to find employment and more affordable housing. He posits that instead of helping him, Tester made false affidavits to Child Protective Services and Adult Protective Services to have Sims' children removed from his care and to have Sims placed in a nursing home. The court held in its February 13, 2001 memorandum opinion and order that Sims had failed to state a claim under the Rehabilitation Act, 29 U.S.C. § 794, because that Act applies only to "any program or activity receiving Federal financial assistance or . . . conducted by any Executive agency or by the United States Postal Service." 29 U.S.C. § 794(a). The court held that Sims' claim under Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132, must be dismissed because Title II applies only to "the services, programs, or activities of a public entity[.]" 42 U.S.C. § 12132. Sims did not allege that the Foundation fell under either of these categories. To the contrary, when asked by the magistrate judge whether the Foundation is a federal, state, or other governmental agency, Sims responded, "not to my knowledge." Ans. to Mag. Judge Quest. # 3. Sims therefore failed to allege any facts establishing liability for the Foundation under either statute.
The Foundation moves to dismiss Sims' amended complaint. The court declines to do so on the ground that it was filed on March 19, 2001, a few days after the due date. This mistake has not caused undue prejudice to the Foundation or to the court. The court agrees with the Foundation, however, that Sims' amended complaint still fails to assert claims against the Foundation on which relief can be granted under either the Rehabilitation Act or the ADA. The court therefore dismisses these claims with prejudice.
The Foundation argues that, to the extent Sims is attempting to assert a pendent state-law claim for defamation, the court lacks subject matter jurisdiction or should decline to exercise supplemental jurisdiction over such a claim. The latter contention is the correct one. A court does not lack subject matter jurisdiction over a state-law claim that is within its supplemental jurisdiction, even if the federal causes of action that confer federal question jurisdiction lack substantive merit. The Foundation rightly asserts, however, that the court should decline to exercise supplemental jurisdiction. The court may decline to exercise such jurisdiction where, as here, the claims that permitted original jurisdiction have dropped out of the case. See 28 U.S.C. § 1367(c)(3) (providing that court may decline to exercise supplemental jurisdiction where it has dismissed all claims over which it has original jurisdiction). "[W]hen all federal claims are dismissed or otherwise eliminated from a case prior to trial, [the Fifth Circuit has] stated that [its] `general rule' is to decline to exercise jurisdiction over the pendent state law claims." McClelland v. Gronwaldt, 155 F.3d 507, 519 (5th Cir. 1998) (citing Wong v. Stripling, 881 F.2d 200, 204 (5th Cir. 1989)). Accordingly, any state-law claims that Sims purports to bring against the Foundation are dismissed without prejudice.
The court grants the Foundation's March 29, 2001 motion to dismiss and dismisses this suit by judgment filed today.
SO ORDERED.