Sciacca v. Durham Cnty. Bd. of Educ.

• Decision Date: 18 December 2020
• Docket Number: 1:20CV94
• Citation: 509 F.Supp.3d 505
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Andrew J. SCIACCA, Jr., Andrew J. Sciacca, Sr., father of minor child, and Kimberley Sciacca, mother of minor child, Plaintiffs, v. The DURHAM COUNTY BOARD OF EDUCATION, a/k/a Board of Education Durham Public Schools ("Durham Public Schools"), The Durham Public Schools Board of Education ("The Board of Education"), Gilbert Singleton, Jr. (in his Individual and official capacity ), Renee Price, (in her Individual and official capacity ) Dr. Pascal Mubenga, (in his Individual and official capacity ), Michael Lee, (a/k/a Mike Lee) (in his Individual and official capacity ), Natalie Beyer (in her Individual and official capacity ), Arasi Adkins (in her Individual and official capacity ), John Doe I (unidentified assailant of Plaintiff), and John Doe 2 (unidentified assailant of Plaintiff), Defendants.

509 F.Supp.3d 505

Andrew J. SCIACCA, Jr., Andrew J. Sciacca, Sr., father of minor child, and Kimberley Sciacca, mother of minor child, Plaintiffs,

v.The DURHAM COUNTY BOARD OF EDUCATION, a/k/a Board of Education Durham Public Schools ("Durham Public Schools"), The Durham Public Schools Board of Education ("The Board of Education"), Gilbert Singleton, Jr. (in his Individual and official capacity ), Renee Price, (in her Individual and official capacity ) Dr. Pascal Mubenga, (in his Individual and official capacity ), Michael Lee, (a/k/a Mike Lee) (in his Individual and official capacity ), Natalie Beyer (in her Individual and official capacity ), Arasi Adkins (in her Individual and official capacity ), John Doe I (unidentified assailant of Plaintiff), and John Doe 2 (unidentified assailant of Plaintiff), Defendants.

1:20CV94

United States District Court, M.D. North Carolina.

Signed December 18, 2020

Kevin E. Jones, The Law Office of Kevin E. Jones, PLLC, Durham, NC, for Plaintiffs.

Melissa J. Michaud, Tharrington Smith, LLP, Raleigh, NC, for Defendants.

MEMORANDUM OPINION AND ORDER

N. Carlton Tilley, Jr., Senior United States District Judge

This matter is before the Court on a Motion to Remand to Durham County Superior Court by Plaintiffs Andrew J. Sciacca, Jr., Andrew J. Sciacca, Sr., and Kimberley Sciacca [Doc. #16], a Motion to Dismiss by Defendants The Durham County Board of Education a/k/a Board of Education Durham Public Schools and Durham Public Schools Board of Education ("Board's Motion") [Doc. #7], a Motion to Dismiss by Defendants Renee Price, Dr. Pascal Mubenga, Michael Lee, Natalie Beyer, and Arasi Adkins ("Individual Defendants’ Motion") [Doc. #9], and Plaintiffs’ Motion for Leave to Amend the Complaint [Doc. #30]. For the reasons explained below, the motion to remand is denied on the bases advanced by Plaintiffs. However, because the Board's Motion and the Individual Defendants’ Motion are granted as to the federal claims, the associated motion to amend is denied as to those claims, and the only other party in the case has not participated in the action, the state law claims asserted against all Defendants are remanded.

I.

At all relevant times, Plaintiff Andrew Sciacca, Jr. ("Andrew") was a student at The School for Creative Studies in Durham, North Carolina. (Compl. ¶¶ 36-37 [Doc. #3].) His parents, Plaintiffs Andrew Sciacca, Sr. and Kimberley Sciacca, made the school administration aware of Andrew's Individualized Education Plan ("IEP") when he enrolled as a ninth-grader. (Id. ¶ 38.)

On April 28, 2017, Andrew was riding the school bus driven by Defendant Gilbert Singleton, Jr. when Singleton offered to pay students riding the bus to slap Andrew. (Id. ¶¶ 41-45.) The students then began slapping and otherwise attacking Andrew. (Id. ¶ 46.) Singleton neither stopped the bus nor attempted to intervene. (Id. ¶¶ 47-48.) Instead, he alerted the students that the bus cameras were recording, prompting a student to cover the camera with his jacket as the attack on Andrew continued. (Id. ¶¶ 49-51.) The incident caused Andrew to suffer pain, serious injuries, mental anguish, humiliation, and embarrassment. (Id. ¶ 56.)

Andrew reported the attack to his parents, and Durham Public School officials and Durham County Sheriff Deputies reviewed the school bus camera footage. (Id. ¶¶ 52-53.) Students involved were charged with juvenile delinquency, and Singleton was charged with assault on a handicapped child, misdemeanor child abuse, and five counts of contributing to the delinquency of a minor. (Id. ¶¶ 54-55.) Two years later, on May 17, 2019, Andrew "was subjected to an additional attack by one of the bullying students while in class", which caused Andrew pain, mental anguish, humiliation, and embarrassment. (Id. ¶¶ 57, 58.)

Plaintiffs filed suit in Durham County Superior Court alleging twenty-two claims related to both incidents. Plaintiffs allege all Defendants are liable for assault (count 1), battery (count 2), conspiracy to commit assault (count 3), conspiracy to commit battery (count 4), negligent infliction of emotional distress (count 6), and intentional infliction of emotional distress (count 7) as a result of the April 28, 2017 bus attack. They separately allege that Singleton (count 5) and the other Defendants ("Institutional Defendants") (count 8) are also liable for negligence related to the April 28, 2017 bus attack, and that the Institutional Defendants are liable for negligence related to the May 17, 2019 incident (count 9).

Plaintiffs allege the Institutional Defendants breached a contract (count 10) and an implied contract (count 11) and violated 42 U.S.C. § 1983 (count 12), equal protection laws in the United States Constitution and the North Carolina Constitution (count 13), and the Rehabilitation Act and Americans with Disabilities Act (count 14). They assert claims for the recovery of expenses (counts 15 and 19) and monies for care of minor child (counts 16 and 20), loss of services of minor child (counts 17 and 21), and negligent infliction of emotional distress (counts 18 and 22).

II.

On January 29, 2020, the Institutional Defendants removed the action to this court pursuant to 28 U.S.C. §§ 1331, 1343, and 1441. (Pet. for Removal [Doc. #1].) At the time of removal, all Institutional Defendants had been served, but Singleton had not been and was not served until apparently March 30, 2020. (See id.; Aff. of Service [Doc. #34]. But see Mot. to Remand ¶ 5 (stating "Singleton was served on February 11, 2020").) On March 2, 2020, Plaintiffs moved to remand because Singleton had not consented to removal and also argued that state court is the "most proper venue" to hear the state law claims, the "federal questions raised in the Complaint are not essential to Plaintiffs’ relief", and the Institutional Defendants "have not alleged any grounds supporting the position that they could not secure a proper defense to this action in State Court." (Mot. to Remand ¶¶ 7-13.)

The Institutional Defendants first challenge the Motion to Remand as untimely. (Defs.’ Resp. to Mot. to Remand at 4 [Doc. #22].) Because Plaintiffs are not challenging subject matter jurisdiction as the basis for their remand motion, they were required to move to remand "within 30 days after the filing of the notice of removal", 28 U.S.C. § 1447(c). The Institutional Defendants argue that Plaintiffs waited more than thirty days after the notice of removal when they filed their March 2, 2020 remand motion. (Defs.’ Resp. to Mot. to Remand at 4.) The docket reflects that Plaintiffs moved to remand on February 28, 2020, but on March 3 the clerk's office modified the docket entry for the motion and its supporting documents and noted they were "Filed in Error" after Plaintiffs were instructed on filing procedures. (See Docs. #12-14.) Because the initial filing was timely and Plaintiffs’ March 2, 2020 filing was in response to the request of the clerk's office, it is determined on this occasion that Plaintiffs’ motion to remand was timely filed.

However, their motion fails on its merits. First, Singleton was not required to consent to removal, as he had not yet been served at the time of removal, January 29, 2020. Plaintiffs argue that Singleton was served on February 11, 2020 (but see Aff. of Service (attesting to service on March 30, 2020)), and apparently because they moved to remand after that date, they repeatedly assert that "all served Defendants have not consented" to removal. (Mem. in Supp. of Mot. to Remand at 7 [Doc. #17].) However, the removal statute requires that, for actions removed pursuant to 28 U.S.C. § 1441(a), "all defendants who have been properly joined and served must join in or consent to the removal action." 28 U.S.C. § 1446(b)(2)(A) (emphasis added). Cf. 28 U.S.C. § 1448 (providing that a "defendant upon whom process is served after removal" has the "right to move to remand the case"). That is what happened here; all Institutional Defendants jointly petitioned for removal. As of January 29, 2020, Singleton had not been served; therefore, his consent for removal was unnecessary.

Next, the court has subject matter jurisdiction over the entire action. Plaintiffs have alleged violations of the United States Constitution, the Rehabilitation Act, and the Americans with Disabilities Act. The Court has original jurisdiction over these claims, see 28 U.S.C. § 1331, and supplemental jurisdiction over the other claims as they form part of the same case or controversy, see 28 U.S.C. § 1367(a).

In support of the proposition that "[u]nder section 1441(c), a district court has the discretion to remand any matter in which state law predominates", Plaintiffs cite Moore v. DeBiase, 766 F. Supp. 1311 (D.N.J. 1991), but the Third Circuit rejected that court's reasoning in Borough of W. Mifflin v. Lancaster, 45 F.3d 780, 787 (1995). Furthermore, 28 U.S.C. § 1441(c) addresses actions alleging a claim within the original jurisdiction of the court and "a claim not within the original or supplemental jurisdiction of the district court or a claim that has been made nonremovable by statute." Here, none of the claims have been made nonremovable and all of the claims are either within the Court's original or supplemental jurisdiction.

Plaintiffs’ reliance on Dixon v. Coburg Dairy, Inc., 369 F.3d 811 (4th Cir. 2004) is also misplaced, as that plaintiff only alleged violations of South Carolina law which the defendant argued upon removal involved a substantial question of federal law and, thus, was properly in federal court. No such analysis is required here, as Plaintiffs actually allege violations of federal law.

In sum, Plaintiffs’ Motion to Remand is denied on the bases they advance. However, for reasons explained infra, the state law claims against the Institutional Defendants and Singleton are remanded because all federal claims against the Institutional Defendants are being dismissed and Singleton has failed to participate in this action.

III.

All the...