United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
No. 4:17CV3047 was removed by Defendants after a ruling I
made in Case No. 8:15CV323 dismissing without
prejudice the state law claims against some of
Defendants who were subject to suit under the Nebraska State
Tort Claims Act (“STCA”), Neb. Rev. Stat.
§§ 81-8, 209, et seq. After the dismissal, and as
might be expected, Mr. Guerry filed suit in state court
specifically invoking the Nebraska STCA.
Mr. Guerry spoke of “individual capacity” in his
state case, he clearly sued Defendants in their capacities as
employees of the State of Nebraska who were acting within the
scope of their employment. So, although his pleading in state
court may have been inartful, it is clear that he intended to
seek relief under the Nebraska STCA and his state case must
be construed accordingly. See Montin v.
Moore, 846 F.3d 289, 292-93 (8th Cir. 2017)
(“Though Montin's amended complaint explicitly
declares all claims are against defendants in their
individual capacities, all the actions or omissions alleged
occurred in the scope of defendants' state employment,
and we must treat the state law malpractice claim as if it is
against defendants in their official capacities.”).
before me are motions to consolidate in each of the above
styled cases. (Filing No. 68, Case No. 8:15CV323;
Filing No. 3, Case No. 4:17CV3047) To make matters
more complex, Defendants filed a summary judgment motion and
brief in support in Case No. 8:15CV323 (Filing Nos.
63, 64) before they filed their motions to
consolidate. Mr. Guerry's time to respond has not yet
not proceed on these matters until I can figure out some
fundamental questions raised by the removal. Therefore, I ask
Mr. Lopez, counsel for Defendants, to carefully read and
consider the following:
Montin's claim against defendants in their official
capacities is barred unless Nebraska has waived sovereign
immunity. See Seminole Tribe, 517 U.S. at
54-55, 116 S.Ct. 1114. If Nebraska has waived its immunity,
Montin must bring the claim within the bounds set forth by
the Nebraska STCA. See Beers v. Arkansas, 61 U.S.
527, 529, 20 How. 527, 15 L.Ed. 991 (1857) (“[A]s this
permission is altogether voluntary on the part of the
sovereignty, it follows that it may prescribe the terms and
conditions on which it consents to be sued, and the manner in
which the suit shall be conducted.”).
If we assume Nebraska waived its sovereign immunity in this
instance, any waiver of that immunity does not extend to
actions brought in federal court. See Neb. Rev.
Stat. § 81-8, 214 (requiring all claims under
Nebraska's STCA be brought in state district court).
State sovereign immunity bars actions in federal court
regardless of the basis for otherwise appropriate subject
matter jurisdiction. See Raygor v. Regents of Univ. of
Minn., 534 U.S. 533, 541-42, 122 S.Ct. 999, 152 L.Ed.2d
27 (2002) (holding the Eleventh Amendment bars actions in
federal court even where 28 U.S.C. § 1367, in general,
authorizes supplemental jurisdiction). Montin did not comply
with the requirements set forth by Nebraska's
STCA-“[s]uits shall be brought in the district court of
the county in which the act or omission ... occurred, ”
Neb. Rev. Stat. § 81-8, 214-when he filed his state law
malpractice claim in federal court. The district court did
not err in dismissing this claim without prejudice.
Montin, supra at 293.
light of Montin, I am surprised and perplexed by the
removal. To be specific, I doubt whether I have subject
matter jurisdiction over any state law claims
that were brought by Mr. Guerry in state court under the
Nebraska STCA. Moreover, while I could take part of the state
court case if that part does not involve the STCA, I would be
obligated to remand any claim involving the STCA to the state
court. 28 U.S.C.A. § 1441 (c) (1) (B) and (c)(2) (West).
Is such a bifurcated approach to a 63-page petition,
involving both a federal court and a state court at the same
time, something Defendants really want?
THEREFORE ORDERED that:
later than April 25, 2017, Defendants shall
submit a brief (filed in both cases) addressing
Montin and whether (a) I have subject matter
jurisdiction to decide any claim made by Mr. Guerry under the
STCA; and (b) if I lack subject matter jurisdiction to decide
any claim made by Mr. Guerry under the STCA, what specific
portions of the underlying pleading filed in state court must
be remanded.Mr. Guerry may also file a brief no later
than April 25, 2017, addressing these same
questions but he is not required to do so.
motions to consolidate (Filing No. 68, Case No.
8:15CV323; Filing No. 3, Case No. 4:17CV3047) are
held in abeyance and Mr. Guerry need not respond to the
motions until further order of the court.
summary judgment motion filed in Case No. 8:15CV323 (Filing
Nos. 63) is held in abeyance and Mr. Guerry need not