King v. Knoll
| Decision Date | 17 September 2005 |
| Docket Number | No. 04-04149-JAR.,04-04149-JAR. |
| Citation | 399 F.Supp.2d 1169 |
| Parties | Janice Lynn KING, Plaintiff, v. John J. KNOLL, Craig J. Spomer, and City of Topeka, Kansas, Defendants. |
| Court | U.S. District Court — District of Kansas |
Janice Lynn King, Topeka, KS, pro se.
Mary B. Mudrick, Legal Department, Topeka, KS, for Defendants.
MEMORANDUM ORDER AND OPINION DENYING PLAINTIFF'S MOTION TO REMAND AND GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This matter comes before the Court on defendants' Motion for Summary Judgment (Doc. 6). Plaintiff filed a response, and defendants filed a reply. Plaintiff filed another response, essentially a surreply, and defendants filed a motion to disregard the surreply (Doc. 16). Plaintiff then filed a Motion for Leave to file a surreply to defendants' motion for summary judgment (Doc 19). Also before the Court is plaintiff's Motion to Dismiss defendants' removal of the case (Doc. 2).
On May 24, 2003, plaintiff was issued a traffic citation by the Topeka Police Department. Plaintiff was driving a vehicle owned by her boss, David Martin Price. Based on this traffic citation, the City of Topeka commenced a municipal court case against plaintiff. On May 28, 2003, defendant John Knoll, an Assistant City Attorney for the City of Topeka, dismissed without prejudice the case against plaintiff because the police officer listed the incorrect code section on the traffic citation. The next day, defendant Knoll refiled the action against plaintiff under a different code section. Plaintiff filed a motion to dismiss in that case, and defendant Knoll responded to that motion. Defendant Craig Spomer, an Assistant City Attorney for the City of Topeka, prosecuted plaintiff for the alleged traffic violation. Plaintiff was found guilty in municipal court, and she appealed the case to district court. Defendant Spomer represented the City of Topeka in this appeal. Plaintiff succeeded in her appeal.
Plaintiff then filed this civil action in state court against Knoll, Spomer and the City of Topeka. Defendants removed the case to federal court. Plaintiff alleges that defendants violated 42 U.S.C. § 1983 by acting outside the scope of their authority and maliciously prosecuting her. Plaintiff also asserts that defendants conspired to intimidate plaintiff because of her association with Mr. Price in violation of 42 U.S.C. § 1985, 42 U.S.C. § 1986, K.S.A. § 12-4112, and the Code of the City of Topeka § A10-21. Plaintiff also alleges that defendant Knoll "was determined to go after Mr. David Martin Price for malicious motives."
After defendants removed this action to federal court, plaintiff filed a Motion to Dismiss defendants' removal, which the Court will construe as a motion to remand. A civil action is removable only if plaintiff could have originally brought the action in federal court.1 The Court is required remand "if at any time before final judgment it appears that the district court lacks subject matter jurisdiction."2 Because federal courts are courts of limited jurisdiction, the law imposes a presumption against federal jurisdiction3 and requires a court to deny its jurisdiction in all cases where such jurisdiction does not affirmatively appear in the record.4
Defendants maintain that federal jurisdiction is appropriate based on the federal question statute, 28 U.S.C. § 1331.5 The federal question statute confers jurisdiction over cases "arising under" federal law.6 "The presence or absence of federal question jurisdiction is governed by the `well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint."7 "`The rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law.'"8
On its face, plaintiff's Complaint asserts several federal causes of action. In the first paragraph of her Complaint, plaintiff states that she is filing this civil action against the defendants under 42 U.S.C. § 1983 "for acting outside the scope of authority and maliciously prosecuting her in a traffic case."9 Additionally, she alleges that defendants conspired to intimidate her in violation of 42 U.S.C. § 1985 and 42 U.S.C. § 1986. Because the Complaint presents a federal question on its face, the Court may exercise jurisdiction under 28 U.S.C. § 1331.
Moreover, defendants complied with the requirements of 28 U.S.C. § 1441 and 28 U.S.C. § 1446 by following the appropriate procedure for removal within the required time period. "As a general rule, all defendants who have been served must join in a removal petition in order to effect removal."10 "There must be a timely filed written indication from each served defendant, or from some person purporting to formally act on his/her behalf and with the authority to do so, that he/she has actually consented to removal."11 Defendants acknowledge that the Notice of Removal failed to list the names of defendants Knoll and Spomer in the signature block. But the Notice of Removal states that "defendants John Knoll, Craig Spomer and City of Topeka, Kansas hereby remove this action. . . ."12 Furthermore, Mary Beth Mudrick, an attorney for the City of Topeka, is representing all of the defendants in this action. While she signed the Notice of Removal as "Attorney for the Defendant City of Topeka," defendants claim that the names of Knoll and Spomer were merely inadvertently omitted from the signature block in this filing. This does not render the removal of defendants Knoll and Spomer ineffective. Not only are they represented by the same attorney, and not only are they referenced in the body of the Notice of Removal, defendants Knoll and Spomer filed a Notice of Consent and Intent to Join in the Removal (Doc. 5). In fact, both the Notice of Removal and the Notice of Consent were filed within the thirty day time limit of 28 U.S.C. § 1446(b).13 Therefore, because defendants complied with the requirements for removal of this action, and the Court has subject matter jurisdiction, plaintiff's motion to remand is denied.
As described above, plaintiff filed a second response titled "Response to Defendant's [sic] Reply to Plaintiff's Response to Defendants' Motion for Summary Judgment," which in effect is a surreply. Defendants then filed a motion asking the Court to disregard the surreply because it was filed without leave of court. Plaintiff thereafter filed a motion for leave of court to file the surreply, to which defendants objected. Under D. Kan. Rule 7.1(a) and (c), parties are permitted to file a dispositive motion, a response and a reply. "Surreplies are typically not allowed."14 "Surreplies are permitted in rare cases but not without leave of court."15 A court will grant leave to file a surreply "for rare circumstances as `where a movant improperly raises new arguments in a reply.'"16
Plaintiff argues that defendants improperly raised the issue of authentication of documents, thereby justifying plaintiff's surreply.17 But defendants did not improperly raise a new issue in their reply. Rather, defendants replied that plaintiff had failed to properly authenticate documents attached to her response to the summary judgment motion. This is not the type of new argument justifying a surreply. Nevertheless, the Court will liberally construe plaintiff's arguments and will grant plaintiff's motion for leave to file a surreply and deny defendants' motion to disregard plaintiff's surreply. The Court, however, would reach the same result on defendants' summary judgment motion regardless of its consideration of the arguments in plaintiff's surreply.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."18 A fact is only material under this standard if a dispute over it would effect the outcome of the suit.19 An issue is only genuine if it "is such that a reasonable jury could return a verdict for the nonmoving party."20 The inquiry essentially determines if there is a need for trial, or whether the evidence "is so one-sided that one party must prevail as a matter of law."21
The moving party bears the initial burden of providing the court with the basis for the motion and identifying those portions of the record that show the absence of a genuine issue of material fact.22 "A movant that will not bear the burden of persuasion at trial need not negate the nonmovant's claim."23 The burden may be met by showing that there is no evidence to support the nonmoving party's case.24 If this initial burden is met, the nonmovant must then "go beyond the pleadings and `set forth specific facts' that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant."25 When examining the underlying facts of the case, the Court is cognizant that all inferences must be viewed in the light most favorable to the nonmoving party and that it may not make credibility determinations or weigh the evidence.26
The Court must construe pro se pleadings liberally and apply a less stringent standard than that which is applicable to attorneys.27 However, the Court may not provide additional factual allegations "to round out a plaintiffs complaint or construct a legal theory on a plaintiffs behalf."28 The Court need only accept as true plaintiffs "well-pleaded factual contentions, not his conclusory allegations."29
As described above, defendants assert that the documents attached to plaintiffs response to defendants' summary judgment motion were not authenticated, which violates the Federal Rules of Civil Procedure and...
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...[the plaintiff] must demonstrate that the Officers did not have probable cause for the charges brought."); King v. Knoll, 399 F. Supp. 2d 1169, 1179 (D. Kan. 2005) (Robinson, J.)("Plaintiff cannot survive a summary judgment motion on her malicious prosecution claim, because plaintiff cannot......
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