Upshaw v. SSJ Grp.
| Decision Date | 25 March 2021 |
| Docket Number | No. 1:19-cv-341,1:19-cv-341 |
| Parties | JEWEL UPSHAW, individually and as the Personal Representative of the Estate of Zena Ray Upshaw, Plaintiff, v. SSJ GROUP, LLC, et al., Defendants. |
| Court | U.S. District Court — Western District of Michigan |
Honorable Paul L. Maloney
The Court referred four motions to dismiss to the Magistrate Judge, who issued a report and recommendation. (ECF No. 158.) Plaintiff filed objections. (ECF No. 160.) Defendant SSJ Group filed objections. (ECF No. 159.) And, Defendant DeltaPlex Arena filed objections. (ECF No. 161.) The Court has conducted the required review and will adopt the report and recommendation.
After being served with a report and recommendation (R&R) issued by a magistrate judge, a party has fourteen days to file written objections to the proposed findings and recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). A district court judge reviews de novo the portions of the R&R to which objections have been filed. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). Only those objections that are specific are entitled to a de novo review under the statute. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986) (per curiam).
Plaintiff's second amended complaint is the controlling pleading. (ECF No. 92.) The Court exercises subject-matter jurisdiction over this lawsuit under the diversity statute, 28 U.S.C. § 1332. Plaintiff pleads eleven claims or counts, all arising under Michigan law. The claims arise from the death of Zena "Zeke" Upshaw. Upshaw played basketball for the Grand Rapids Drive, a team in the National Basketball Association's G League. On March 24, 2018, Upshaw collapsed on the court near the end of a game. Plaintiff Jewel Upshaw, Zeke's mother, watched the game by live stream video. Upshaw passed away two days later. The complaint names six defendants: (1) SSJ Group, (2) the DeltaPlex Arena, (3) the University of Michigan Health System, (4) the University of Michigan Board of Regents, (5) Life EMS, and (6) Edwin Kornoelje, D.O. SSJ Group filed a motion to dismiss. (ECF No. 112.) DeltaPlex Arena filed a motion to dismiss. (ECF No. 108). The two entities associated with the University of Michigan (University Defendants) filed a motion to dismiss. (ECF No. 126.) And, Kornoelje filed a motion to dismiss.1 (ECF No. 146.)
The Magistrate Judge recommends granting the motion filed by the University Defendants. Plaintiff alleges five claims or counts against the University Defendants: (1) intentional infliction of emotional distress, (2) negligent infliction of emotional distress, (3) negligence, (4) gross negligence, and (5) medical malpractice. The Magistrate Judge concludes the University Defendants are protected from lawsuits in federal courts by theEleventh Amendment. Plaintiff objects to the recommendation. The Court will overrule the objection.
The Magistrate Judge makes several factual and legal conclusions to which Plaintiff does not object. The University Defendants are instrumentalities or arms of the State. The University Defendants enjoy Eleventh Amendment immunity. And, the Eleventh Amendment precludes federal court actions against a State and its instrumentalities unless that state waived its sovereign immunity or consented to suit in federal court. Plaintiff does not object to these conclusions.
1. Transfer. Plaintiff requests that if the Court concludes that the University Defendants are entitled to immunity, the Court transfer the lawsuit to the Michigan Court of Claims rather than dismiss the claims. Plaintiff's request is denied. Plaintiff has not identified any mechanism that would authorize the requested transfer from federal courts to state courts. By statute, Congress authorizes removal from state court to federal court and remand from federal court to state court. When remand occurs, it necessarily followed a removal. The statute does not authorize a federal court to transfer a lawsuit originally filed in federal court to a state court. Accordingly, Plaintiff's authority, Estate of Ritter v. University of Michigan, 851 F.2d 846 (6th Cir. 1988), which involved a removal and subsequent order to remand, does not help.
2. Waiver of Immunity. The Magistrate Judge concludes that the University Defendants are arms of the State and are entitled to Eleventh Amendment immunity. Plaintiff objects. Plaintiff argues Michigan has waived its immunity from suit. Plaintiff relies almost exclusively on opinions issued by Michigan courts and discussions of Michigan'sGovernmental Tort Liability Act (GTLA). The Court overrules Plaintiff's objection. The Magistrate Judge succinctly explained why Plaintiff's reliance on this authority is not persuasive: "whether Defendants would be entitled to immunity under Michigan law in an action properly pursued in a state court is not relevant to the Eleventh Amendment analysis." (R&R at 12 PageID.2719.) None of the cases cited by Plaintiff demonstrate that Michigan has "unequivocally expressed" consent to be sued in federal court. See Pennhurst State Sch. & Hosp. v Halderman, 465 U.S. 89, 99 (1984). Our Supreme Court has "consistently held that a State's waiver of sovereign immunity in its own courts is not a waiver of the Eleventh Amendment immunity in the federal courts." Id. at 99 n.9. Plaintiff has not demonstrated that Michigan's GTLA contains any unequivocal waiver of Eleventh Amendment immunity. See Wolfe v. Oakland Univ., No. 15-cv-13560, 2016 WL 7048812, at *6-*7 (E.D. Mich. Dec. 5, 2016).
1. Jurisdiction. The Magistrate Judge recommends rejecting SSJ Group's argument that this Court lacks subject-matter jurisdiction over Plaintiff's claims against SSJ Group. SSJ Group argues that Michigan's Worker's Disability Compensation Act (WDCA) provides the exclusive remedy for Plaintiff's claims against SSJ Group. The premise of SSJ Group's argument is that Plaintiff pleads that SSJ Group was Upshaw employer. With that premise, SSJ Group argues Plaintiff's claims fall under the WDCA and concludes, therefore, that this Court lacks subject-matter jurisdiction over the claims. The Magistrate Judge treated the jurisdictional challenge as a factual challenge and considered the evidence submitted with Plaintiff's response. The Magistrate Judge concludes that Plaintiff presented sufficientevidence to show that Upshaw's employer was Basketball Services Corporation (BSC) and not SSJ Group. SSJ objects, insisting that the Magistrate Judge did not fully apply the economic realities test. The Court will overrule the objection.
This Court may exercise subject-matter jurisdiction to determine the existence of or lack of an employer-employee relationship. In Sewell v. Clearing Machine Corporation, 347 N.W.2d 447, 450 (Mich. 1984), the Michigan Supreme Court held that while the Bureau of Worker's Compensation "has exclusive jurisdiction to decide whether injuries suffered by an employee were in the course of employment," courts "retain the power to decide the more fundamental issue of whether the plaintiff is an employee (or a fellow employee) of the defendant." Twenty years later, in Reed v. Yackell, 703 N.W.2d 1, 11 (Mich. 2005), the same court noted that Sewell may have been wrongly decided, but expressly "decline[d] to overrule Sewel on this record." The holding in Sewell remains binding on this Court, and this Court has subject-matter jurisdiction to determine if SSJ Group was Upshaw's employer. Therefore, the Court agrees with the recommendation of the Magistrate Judge that Defendant SSJ Group's Rule 12(b)(1) jurisdictional challenge should be denied.
To be clear, this Court has not decided whether Defendant SSJ Group was or was not Upshaw's employer. The answer to that question—the existence of an employer-employee relationship under Michigan law—should rarely be resolved under Rule 12. See, e.g., Miller v. Stewart, No. 15-14164, 2016 WL 8458985, at *3 (E.D. Mich. Dec. 13, 2016) ( ). A court may find an employment relationship as a matter of law only where "the evidence on the matter is reasonably susceptible of but a single inference" and "where evidence of a putative employer's status is disputed, or where conflicting inferences may reasonably be drawn from the known facts, is the issue one for the trier of fact." Clark v. United Techs. Auto., Inc., 594 N.W.2d 447, 453 (Mich. 1999). Here, Plaintiff pleads facts that might support the conclusion that SSJ Group was Upshaw's employer. But, Plaintiff has not pled that SSJ Group was Upshaw's employer and, in her response, Plaintiff explicitly denies that SSJ Group was Upshaw's employer. At this point in the litigation, the parties have not presented evidence concerning the totality of the circumstances. The Court declines SSJ Group's invitation to apply the economic realities test to the allegations in the complaint. Should SSJ Group want to prove it was Upshaw's employer, it may try to do so as part of a motion for summary judgment.
2. Duty. SSJ Group questions whether it owed any duty to Upshaw if it was not his employer. SSJ Group argues that duty arises only from a relationship. SSJ Group reasons that if it had no control over Upshaw, then it likely had no duty to Upshaw.
The Court declines to consider this "no duty" argument. In its motion to dismiss, SSJ Group did not argue that it did not owe any duty to Upshaw. The word "duty" appears exactly once in SSJ Group's motion to dismiss (PageID.1872). The argument advanced here is not an objection to any specific portion of the Report and Recommendation.
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