United States District Court, E.D. North Carolina, Southern Division
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE.
matter is before the Court on motions to dismiss by
defendants and plaintiffs response to the notice of removal
and motion to amend his complaint. The appropriate responses
and replies have been filed and the matters are ripe for
adjudication. For the reasons that follow, plaintiffs motions
are denied and defendants' motions to dismiss are granted
proceeding pro se, filed this action on November 30,
2016, in Onslow County, North Carolina alleging claims
arising out of an incident which occurred on March 30, 2014.
During the incident, plaintiff was involved in a high speed
chase with members of the Columbus County Sheriffs Office,
the City of Jacksonville Police Department, and the State
Highway Patrol. The chase ended when plaintiff exited his
vehicle; plaintiff was ultimately shot by law enforcement
officers and was struck by approximately forty-three rounds.
Plaintiff has alleged federal constitutional claims for
excessive force, violation of his due process rights, and
violation of his equal protection rights. Plaintiff has
further alleged that the Columbus County Sheriffs Office
maintains unconstitutional practices, policies, or customs
and that the Sheriff has supervisory liability over its
deputies. Finally, plaintiff has alleged state law tort and
negligence claims. Defendants removed plaintiffs action to
this Court on the basis of its federal question jurisdiction.
28 U.S.C. § 1331; 1441.
to filing the instant action, plaintiff, again proceeding
pro se, had in this Court filed a similar complaint
against the same defendants as named herein. See Evans v.
Capps, No. 7:15-CV-252-BO (E.D.N.C). That complaint also
arises out of the same March 30, 2014, incident. Accordingly,
all defendants in the instant action have moved to dismiss
this case as duplicative, or in the alternative to stay this
case or consolidate it with the earlier-filed action.
Plaintiff has responded in opposition to the motions to
dismiss. Plaintiff has further responded in opposition to
removal, which the Court will construe as a motion to remand.
Plaintiff further seeks to amend his complaint to allege only
state law causes of action.
concerns this Court's jurisdiction over plaintiffs
complaint, the Court addresses first plaintiffs motion to
remand. Removal of a civil action from state court is only
proper where the federal district courts would have original
jurisdiction, 28 U.S.C. § 1441, and it is the burden of
the removing party to show that jurisdiction lies in the
federal court. Dixon v. Coburg Dairy, Inc., 369 F.3d
811, 816 (4th Cir. 2004) (en banc). Removal jurisdiction must
be construed strictly in light of federalism concerns, and if
jurisdiction in the federal district court is determined to
be doubtful, remand is required. Mulcahey v. Columbia
Organic Chems. Co., 29 F.3dl48, 151 (4th Cir. 1994).
argues that he filed his state court action with the
knowledge that he already had an action concerning these
events pending in federal court, and he acknowledges that he
has raised at least two federal claims in the instant
complaint. It is plain from reviewing plaintiffs complaint
that he has alleged causes of action arising under the United
States Constitution and that removal was proper under 28
U.S.C. §§ 1441(a) and 1331. No defect in the
removal process has been identified, and this Court's
jurisdiction over plaintiffs complaint does not appear to be
although plaintiff seeks to amend his complaint to omit
federal question causes of action, if an original complaint
sufficiently vested the federal court with jurisdiction,
subject matter jurisdiction is not divested from the district
court when the federal claims are dismissed from the
complaint. Harless v. CSX Hotels, Inc., 389 F.3d
444, 448 (4th Cir. 2004). Although motions to amend are
typically allowed, see Fed. R. Civ. P. 15(a), a
court may consider whether the plaintiff has acted in bad
faith or with an improper motive when seeking to amend his
complaint. Johnson v. Oroweat Foods Co., 785 F.2d
503, 509 (4th Cir. 1986) (citation omitted). Here, plaintiff
does not offer another basis in support of amendment other
than his contention that by dismissing his federal claims he
would be permitted to return to state court. As noted above,
plaintiffs contention is without merit. Additionally, while
if plaintiff s motion to amend were allowed the Court would
have discretion to decide whether to remand the state law
claims to state court, Harless, 389 F.3d at 448;
see also Carnegie-Mellon Univ. v. Cohill, 484 U.S.
343, 351 (1988), the Court declines to allow plaintiffs
request to amend made in an effort only to defeat this
Court's jurisdiction because, as discussed below,
consolidation of plaintiffs two actions is appropriate.
three dismissal motions under Rule 12(b)(6) seek to dismiss
this complaint as duplicative of the complaint filed in case
No. 7:15-CV-252-BO (252 Action). In the alternative,
defendants seek to consolidate this action with the 252
Action or stay this proceeding and await the resolution of
the 252 Action. A Rule 12(b)(6) motion tests the legal
sufficiency of the complaint. Papasan v. Allain, 478
U.S. 265, 283 (1986). When acting on a motion to dismiss
under Rule 12(b)(6), "the court should accept as true
all well-pleaded allegations and should view the complaint in
a light most favorable to the plaintiff." Mylan
Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th
Cir.1993). A complaint must allege enough facts to state a
claim for relief that is facially plausible. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
rule against claim splitting prohibits a plaintiff from
prosecuting its case piecemeal and requires that all claims
arising out of a single wrong be presented in one
action." Lee v. Norfolk S. Ry Co., 802 F.3d
626, 635 (4th Cir. 2015) (internal quotation marks and
citation omitted). When faced with a duplicative suit,
"simple dismissal of the second suit is [a] common
disposition because plaintiffs have no right to maintain two
actions on the same subject in the same court, against the
same defendant at the same time." Curtis v.
Citibank, N.A., 226 F.3d 133, 138-39 (2d Cir. 2000).
Other common dispositions include consolidation of cases.
defendants have all correctly argued, both the instant and
the 252 Action complaint arise out of the precise same event
or series of events, that is - a high speed chase and
subsequent shooting of plaintiff by several law enforcement
officers on March 30, 2014. A comparison of the two
complaints reveals that they allege identical or related
claims against identical defendants. The claims raised in the
252 Action are for supervisory liability, pattern or practice
of disregard of constitutional rights, and failure to
properly train/deliberate indifference against Sheriff
Hatcher; excessive force, equal protection violation, due
process violations, cruel and unusual punishment, and racial
profiling. Plaintiff further cites to claims under the North
Carolina Constitution and North Carolina General Statutes in
that complaint. In the instant complaint, plaintiff alleges
state law claims for negligence, gross negligence,
intentional torts, excessive force, intentional infliction of
emotional distress, unconstitutional policy or customs,
failure to properly screen, train, and supervise deputies,
deliberate indifference to continuing constitutional
violations by deputies, and supervisory liability.
claims in this subsequently-filed action fall squarely under
the rule against claim splitting and the Court in its
discretion, and in light of plaintiff s pro se
status, will consolidate plaintiffs two cases. In doing so,
the Court recognizes plaintiffs attempt to have his state law
tort and negligence claims adjudicated in the state forum
while having his federal claims adjudicated here, but
concerns regarding issue and claim preclusion ...