Laible v. Lanter

• Decision Date: 03 June 2022
• Docket Number: Civil Action 21-102-DLB-CJS
• Parties: JASON LAIBLE, et al. PLAINTIFFS v. TIMOTHY LANTER, et al. DEFENDANTS
• Court: U.S. District Court — Eastern District of Kentucky

JASON LAIBLE, et al. PLAINTIFFS
v.
TIMOTHY LANTER, et al. DEFENDANTS

Civil Action No. 21-102-DLB-CJS

United States District Court, E.D. Kentucky, Northern Division, Covington

June 3, 2022

MEMORANDUM OPINION AND ORDER

David L. Buunning United States District Judge

I. INTRODUCTION

This matter is before the Court upon several pending motions: a Motion to Remand filed by Plaintiffs (Doc. # 8); a Motion to Dismiss filed by Defendants (Doc. # 10); a Motion to Stay filed by Defendants (Doc. # 11); a Petition for a Westfall Act Certification filed by Defendants (Doc. # 34); and a Motion for Leave to File a Sur-Reply filed by Plaintiffs. (Doc. # 52). An Oral Argument on the pending motions was held on May 25, 2022. (See Doc. # 63). Jacqueline Greene and Roula Allouch appeared for Plaintiffs; Aaron Herzig, Spencer Cowan, and Ken Foisy appeared for Defendants; and Tiffany Fleming appeared for the United States. (Id.). The Court heard arguments from all parties with respect to all pending motions.

In addition to the Oral Argument, all pending motions have been fully briefed (Docs. # 9, 12, 15, 16, 17, 40, 44, 49, 51, 53, and 61), and are thus ripe for the Court's review. Having considered the arguments made, and for the reasons stated herein, Plaintiffs' Motion to Remand (Doc. # 8) is DENIED, Defendants' Petition for a Westfall Act

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Certification (Doc. # 34) is DENIED, Plaintiffs' Motion for Leave to File a Sur-Reply (Doc. # 50) is GRANTED, and all other pending Motions are DENIED AS MOOT.

II. FACTUAL AND PROCEDURAL BACKGROUND

This case stems from an August 2020 incident in Newport, Kentucky, which resulted in the deaths of Raymond and Gayle Laible and in serious injuries to Steven and Maribeth Klein. (Doc. # 1-1 ¶ 3). During the afternoon of August 7, 2020, the Laibles were dining on the sidewalk patio of a Newport restaurant located at the corner of Fifth Street and Monmouth Street. (Id. ¶ 81). The Kleins were walking together on the sidewalk near the same corner. (Id. ¶ 82). Meanwhile, across the river, officers from the Cincinnati Police Department (“CPD”) were working in conjunction with federal law enforcement agencies to apprehend Mason Meyer. (Id. ¶¶ 16-19).

Mr. Meyer had been under investigation by law enforcement for drug and gun trafficking (id. ¶ 17), and in August 2020, Mr. Meyer had outstanding state and federal warrants. (See Doc. # 58-1 at 2). A task force led by the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) sought out to arrest Mr. Meyer on August 7, 2020, but Mr. Meyer evaded capture and fled in a vehicle owned by Austin Lagory, a friend of Mr. Meyer's and a defendant in this action. (See generally id.; Doc. # 1-1 ¶¶ 2427). The CPD's role in the task force operation was to “conduct a felony traffic stop with assistance from CPD K9s per [their Standard Operating Procedures]” in the event of Mr. Meyer's escape. (Doc. # 58-1 at 4). Accordingly, when Mr. Meyer fled, CPD Sgt. Timothy Lanter initiated a pursuit, following Mr. Meyer's vehicle, and Sgt. Lanter later directed K9 units led by Ofc. Brett Thomas and Spc. Michael Harper to join him. (Doc. # 1-1 ¶¶ 27 and 31). Spc. Harper was unable to get close enough to engage in the pursuit, and so

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Sgt. Lanter and Ofc. Thomas, both driving marked Cincinnati Police vehicles, chased Mr. Meyer. (Id. ¶ 42; Doc. # 40-1 at 8). Meanwhile, Sgt. Donald Scalf supervised the pursuit via radio as the designated Officer-in-Charge (“OIC:”), but he did not actively engage in the pursuit. (Doc. # 1-1 ¶ 29). ATF Resident Agent In Charge (RAC) Frank Occhipinti assisted Sgt. Scalf by confirming Mr. Meyer's location using cell phone tracking data, and at this point, radio communications were changed from a CPD/ATF joint channel to a CPD-only general dispatch channel. (Doc. # 44-1 at 1). Via the CPD radio channel, Sgt. Scalf, as OIC, authorized Sgt. Lanter to pursue Mr. Meyer into Kentucky if Mr. Meyer crossed the Ohio River. (Doc. # 1-1 ¶¶ 34-35 and id. at 4).

The pursuit began on the west side of Cincinnati near the Price Hill neighborhood and continued through the Price Hill Incline District before Mr. Meyer circled back toward downtown Cincinnati on the Sixth Street Expressway and then got on the interstate. (Id. ¶¶ 38-44). On the interstate, Mr. Meyer's car struck a vehicle, but Mr. Meyer continued toward downtown Cincinnati, with his car and the police cruisers reaching speeds over 100 miles per hour. (Id. ¶¶ 47-49 and 53). From there, Mr. Meyer led Sgt. Lanter and Ofc. Thomas off the interstate and onto Second Street in Cincinnati, before crossing the Roebling Suspension Bridge into Covington, Kentucky. (Id. ¶¶ 63 and 66). Mr. Meyer and the officers passed eleven cars on the Roebling Bridge, crossing into oncoming lanes as they dodged traffic. (Id. ¶ 66). The chase continued through Covington, with the cars weaving through downtown Covington, and Sgt. Lanter authorized the CPD officers to go the wrong way down Covington's one-way streets without requesting clearance from Sgt. Scalf. (Id. ¶ 73; Doc. # 40-1 at 11).

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After making a loop down and up Garrard Street in Covington through Sanford Alley, Mr. Meyer turned onto the Fourth Street Bridge in Covington to cross into Newport. (Doc. # 1-1 ¶ 73). Mr. Meyer's vehicle nearly struck several cars and a motorcycle on the bridge (id. ¶ 79), and he continued to head straight onto Fifth Street in Newport. (Id. ¶ 80). Still at a high rate of speed, Mr. Meyer then ran a red light at the corner of Fifth Street and Monmouth Avenue in Newport, losing control of his vehicle shortly thereafter, came onto the sidewalk, and crashed into the restaurant located on the corner. (Id. ¶ 83). Gayle and Raymond Laible were directly impacted by Mr. Meyer's car, and Steven and Maribeth Klein were thrown several yards onto the asphalt after being impacted by debris. (Id. ¶¶ 84-85).

Mrs. Laible was pronounced dead on the scene, and Mr. Laible was taken to a Cincinnati hospital, where he was later pronounced dead. (Id. ¶¶ 89-90). Mr. and Mrs. Klein suffered various injuries, including road rash. (Id. ¶¶ 91-92). After the crash, Mr. Meyer was taken into custody along with two passengers in the car. (See generally Doc. # 40-1). Mr. Meyer was charged with two counts of Murder for the deaths of Mr. and Mrs. Laible, and one count each of Wanton Endangerment and Fleeing or Evading Police, in addition to the previously outstanding drug and gun charges. (Id. at 11). Mr. Meyer remains incarcerated, as he pleaded guilty to the Murder counts and received a life sentence. (Docs. # 1-1 ¶ 10 and 34 at 8).

Jason Laible, as Executor of the Estates of Raymond and Gayle Laible, and Steven and Maribeth Klein filed this lawsuit in August 2021 in Campbell Circuit Court. (See id.). The lawsuit alleges counts of negligence resulting in injury, wrongful death, and negligent supervision against Sgt. Lanter, Ofc. Thomas, Sgt. Scalf, the City of

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Cincinnati, and Mr. Meyer; and negligent entrustment against Mr. Lagory with respect to Mr. Meyer's driving of his vehicle. (Id. ¶¶ 138-164). The lawsuit also seeks a declaration of rights with respect to an under/uninsured motorists insurance policy issued by Travelers Casualty Insurance Company of America to Mr. and Mrs. Klein. (Id. ¶¶ 165-170).

Shortly after Plaintiffs filed suit, the individual CPD Defendants and the City of Cincinnati (collectively, “City Defendants”) removed the case to this Court. (Doc. # 1). In their Notice of Removal, the City Defendants rely upon 28 U.S.C. § 1442, which provides federal officers with a right of removal. (See id.). The City Defendants assert that as part of the ATF-led task force, the CPD officers are federal officers for purposes of removal. (See id.). In the last paragraph, they mention briefly that they “have several federal defenses to Plaintiffs' claims, including federal-employee immunity under the Federal Tort Claims Act. See 28 U.S.C. § 2679.” (Id. ¶ 8). Plaintiffs took issue with that last paragraph, filing a Motion to Remand soon after, arguing that the Court lacks subject-matter jurisdiction due to the City Defendants' failure to obtain a certification under 28 U.S.C. § 2679, which is a statute more commonly known as the Westfall Act.^[1] (See Doc. # 8). According to Plaintiffs, without Westfall certification, the City Defendants have no colorable federal defense, which inhibits their right of removal, which in turn strips the Court of subject-matter jurisdiction. (See id.).

Over the following several weeks, briefing continued on the Motion to Remand, and the City Defendants filed a Motion to Dismiss (Doc. # 10) and a Motion to Stay (Doc. # 11).

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While these Motions were pending, Plaintiffs effected service of process against all Defendants, including Mr. Meyer and Mr. Lagory. During that time, the United States became involved in the case, as it declined to issue a Westfall certification to the City Defendants. (Doc. # 30). The City Defendants then petitioned this Court to issue the certification (Doc. # 34), and that Petition was fully briefed, including a Response filed by the United States. (Doc. # 44). Then, more recently, after all the previously detailed briefing, Plaintiffs filed a Motion for Leave to file a Sur-Reply (Doc. # 50), and the City Defendants filed a Motion for Leave to File an Operational Plan written by the ATF which detailed the August 2020 operation to apprehend Mason Meyer. (Doc. # 52). The Court conducted a telephonic hearing on April 28, 2022 regarding the ATF Operational Plan and conducted an in camera review of the document. (Doc. # 57). After reviewing the Operational Plan, the Court ordered a redacted copy filed into the open record (id.), and gave Plaintiffs leave to file a brief Response to the document. (Doc. # 61). With procedural history in mind, the Court is now prepared to adjudicate all of these Motions, beginning with the Motion to Remand.

III....