Wilson et al v. Board of Education of Fayette County et al, No. 5:2014cv00454 - Document 28 (E.D. Ky. 2015)
Court Description: MEMORANDUM ORDER & OPINION: 1. Dfts' motions to remand, 10 , 16 are DENIED; 2. Plaintiffs' motion to amend complaint 12 is GRANTED; 3. Dfts's Motion for a more definite statement is DENIED; 4. Plaintiff's Motion for restrai ning order 3 is DENIED; 5. Plaintiffs' Motion to withdraw motion for extension of time 9 is GRANTED to the extent that the motion for an extension of time, 6 , is DENIED AS MOOT; 6. Plaintiffs' Motion to lift abeyance 11 15 is GRANT ED; 7. Plaintiffs' Motion to substitute party 13 is GRANTED, Tom Shelton is terminated as dft and Marlene Helm is substituted in her Official Capacity as Acting Superintended; 8. Plaintiffs' application for entry of default 25 is DENIED. Signed by Judge Joseph M. Hood on 7/16/15.(LC)cc: COR, Plaintiff via US Mail
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Wilson et al v. Board of Education of Fayette County et al Doc. 28 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION at LEXINGTON ANTHONY D. WILSON, on behalf of himself and as guardian and best friend of C.W., a minor child, ) ) ) ) ) and ) ) C.W., a minor, ) ) Plaintiffs, ) ) v. ) ) ) BOARD OF EDUCATION OF ) FAYETTE COUNTY, ) ) and ) ) TOM SHELTON, in his official ) capacity as Superintendent ) Of Fayette County Public ) ) Schools. ) Defendants. ) ** ** Action No. 5:14-cv-454-JMH MEMORANDUM ORDER AND OPINION ** ** ** Plaintiffs allege that Defendants have wrongfully denied C.W. enrollment in Veterans Park Elementary, her neighborhood school, and rather, enrolled her in Southern Elementary, school that is less desirable and farther from her home. matter is before the Court upon several motions filed a The by Plaintiffs, as well as Defendants’ motion for a more definite statement with respect to Plaintiffs’ complaint. The Court has Dockets.Justia.com reviewed the record and applicable law and, being sufficiently advised, will now issue a ruling on each motion. A. As Plaintiffs’ Motions to Remand an initial matter, the Court motions to remand, [DE 10, 16]. for remand, which the Court turns to Plaintiffs’ Plaintiffs raise two grounds will address in turn. First, Plaintiffs argue that the unanimity required by 28 U.S.C. § 1446(b)(2)(A) is not satisfied. Specifically, Defendants argue that Tom Shelton could not have agreed to removal because the matter was removed to federal court on December 19, 2014, and Shelton was Plaintiffs not properly sued Shelton Superintendent of Fayette served in until his County December official Public 29, 2014. capacity Schools, as however. “Official capacity” suits have the effect of making the agency the real party in interest rather than the individual named. Kentucky v. Graham, 473 U.S. 159, 165–66 (1985). the government entity receives notice and an “As long as opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.” 166. Id. at Plaintiffs’ intent to sue Shelton solely in his official capacity is reflected further by the “motion to substitute party” in which they seek to remove Shelton from this case and substitute Marlene Helm, the current Superintendent of Fayette 2 County Public Schools. Accordingly, despite the timing of Shelton’s service, the unanimity requirement is satisfied. Plaintiffs also contend that this matter should be remanded in light of 28 U.S.C. § 1447(d)’s requirement that, after the filing of a notice of removal, the defendants must “promptly” file a copy of the notice with the clerk of the state court. Defendants do not dispute that they failed to file their notice of removal with the state court clerk at the time of removal. Rather, apparently January 22, due 2015—34 to days an oversight, after the case they was waited until removed. The question is, then, whether the notice to the state court may be characterized as prompt. In Lang v. Mattison, No. 6:13-cv-38, 2013 WL 2103145, at *2–3 (E.D. Ky. May 14, 2013), the court determined that a 33-day lapse was acceptable. As in Lang, it would have been preferable had the defendants notified the state court upon filing the notice of removal in federal court. The defect does not require remand, however, because the defendants did eventually notify the state court of removal and there is no indication that any activity took place in the Fayette Circuit Court during the delay. Accordingly, any concurrent jurisdiction did not affect the case and no prejudice Plaintiffs’ motions to remand will be denied. 3 has resulted. B. Defendants’ Motion for a More Definite Statement and Plaintiffs’ Motion to Amend the Complaint Next, the Court turns to the Defendants’ motion for a more definite statement with respect to Plaintiffs’ complaint. Federal Rule of Civil Procedure 12(e) provides that “[a] party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response.” Such motions are generally disfavored, see, e.g., Static Control Components, Inc. v. Lexmark Int’l, Inc., No. 04-cv-84, 2005 WL 2122641, *1 (E.D. Ky. Aug. 29, 2005), and will be granted only “when the pleading is so vague that it is unreasonable to expect that a responsive pleading may or can be framed.” SKY Tech. Partners, LLC v. Midwest Res. Inst., 125 F. Supp. 286, 298 (S.D. Ohio 2000). To be sure, Plaintiffs’ complaint is far from a model of clarity. Nor can it be said to contain “a short and plain statement of the claim[s] showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While Plaintiffs include a significant amount of background information, the complaint lacks specificity when it comes to describing legal claims.1 The The exception is Count II, in which Plaintiffs adequately allege a claim that Defendants have violated Plaintiffs’ rights to travel, to utilize public land, and to associate freely, under the Kentucky and United States Constitutions, as well as K.R.S. § 511.090. 1 4 complaint, in its original state, is so vague that Defendants would not be able to formulate an answer without speculating or attempting to articulate Plaintiffs’ claims for them. Following removal of this matter, however, Plaintiffs moved to amend the original complaint, seeking to clarify that their claims are brought pursuant to 42 U.S.C. § 1983 and “the Equal Protection Clause of the opinion that, should be Fourteenth at this permitted Amendment.” early and stage that the The of Court is litigation, amendment of the amendment enables the Defendants to meaningfully respond to the Complaint. C. Motion for a Temporary Restraining Order and a Hearing Plaintiffs move for a temporary restraining order and for a hearing on a preliminary injunction in this matter, [DE 3]. Pursuant to Federal Rule of Civil Procedure 65(b), the Court may issue a temporary restraining order only if “specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition.” Irreparable harm is generally defined as harm that cannot be fully compensated by monetary damages. See Overstreet v. Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566, 578 (6th Cir. 2002). C.W. is not enrolled in Veterans Park Elementary at this time, as Plaintiffs desire, but she is enrolled at Southern 5 Elementary school School, system. another school Plaintiffs within contend that the Fayette Veterans County Park is consistently ranked as one of the best schools in the state, while Southern Elementary struggles to be “proficient.” Regardless, C.W.’s enrollment in school at Southern rather than Veterans Park hardly constitutes irreparable harm. There is no suggestion that the child is being denied access to regular school attendance activities. or to participation in regular school Accordingly, the motion for a temporary restraining order will be denied. Although Federal Rule of Civil Procedure 65 requires that a hearing be conducted prior to the issuance of a preliminary injunction, Sec. & Exch. Comm’n v. G. Weeks Secs. Inc., 678 F.2d 649, 651 (6th Cir. 1982), preliminary injunctions may be denied without a hearing despite the request for one, when the record demonstrates “the lack of a right to relief so clearly that receiving further evidence would be manifestly pointless.” 11A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 3d § 2949 (2010); see Farnsworth v. Nationstar Mortgage, LLC, 569 F. App’x 421, 427 (6th Cir. 2014). A specific finding of irreparable injury is a prerequisite that the court must examine when ruling upon a motion for a preliminary injunction. 6 See Los Angeles v. Lyons, 461 U.S. 95, 111 (1983); Warner v. Central Trust Co., N.A., 715 F.2d 1121 (6th Cir. 1983). An absence of this finding ends the Court’s inquiry. As explained Elementary is an above, Plaintiffs’ inferior school, constitute an irreparable harm. assertion taken as that true, Southern fails to There is no suggestion that C.W. has been denied the opportunity to attend school or to participate in potentially incompensable appears assert to school an activities harm and, has additional thus, been no alleged. claim that immediate, Plaintiff Defendants have somehow violated Plaintiffs’ lawfully protected right to “choose modes and direction of travel” and to “utilize public parks and spaces/lands Plaintiffs proposal open refer that to the public.” to the Defendants’ C.W. be permitted The to Court denial presumes of attend that Plaintiffs’ Veterans Park Elementary by taking a footpath that would cut through Veterans Park. Defendants’ enrollment of C.W. at a particular school, of course, does not constitute a restriction on C.W.’s ability to choose modes of travel or to utilize the park. Accordingly, this claim has little success of chance on the merits and a preliminary injunction is not appropriate. See Gonzales v. Nat’l Bd. of Med. Examiners, 225 F.3d 620, 625 (6th Cir. 2000) 7 (“[A] finding that there is simply no likelihood of success on the merits is usually fatal.”). D. Motion to Substitute Party Plaintiffs move to substitute Marlene Helm, in her official capacity as Acting Superintendent of Fayette Schools for original Defendant Tom Shelton. County Public Plaintiffs contend that Helm officially took over this position on January 1, 2015. Pursuant to Federal Rule of Civil Procedure 25(d), a public officer’s successor is automatically substituted as a party and later proceedings should be in the substituted party’s name. Accordingly, while it was not necessary for Plaintiffs to make a motion to substitute, the motion will be granted. E. Motion for Entry of Default Finally, Plaintiffs’ motion for entry of default will be denied. have This action has been held in abeyance and Defendants not complaint answer been up required until Plaintiffs’ this to file point. complaint shall an The answer time commence for to Plaintiffs’ Defendants running upon to the entry of this Order. Accordingly, IT IS HEREBY ORDERED: (1) that Defendants’ motions to remand, [DE 10, 16] are DENIED; 8 (2) that Plaintiffs’ motion to amend complaint, [DE 12], is GRANTED; (3) that Defendants’ motion for a more definite statement is DENIED; (4) that Plaintiffs’ motion for a restraining order and to set a date for a preliminary injunction hearing, [DE 3], is DENIED; (5) that Plaintiffs’ motion to withdraw motion for extension of time, [DE 9], is GRANTED to the extent that the motion for an extension of time, [DE 6], is DENIED AS MOOT; (6) that Plaintiffs’ motion to lift abeyance, [DE 11, 15], is GRANTED; (7) is that Plaintiffs’ motion to substitute party, [DE 13], GRANTED and the Clerk shall terminate Tom Shelton as a Defendant in this matter and add Marlene Helm in her Official Capacity as Acting Superintendent of Fayette County Public Schools; (8) that Plaintiffs’ application for entry of default, [DE 25], is DENIED. 9 This the 16th day of July, 2015. 10
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