United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
matter is before the court on Defendants' Notice of
Removal of Case No. 4:17CV3047 (Filing No. 1) and
Defendants' Motion to Consolidate Case No. 4:17CV3047
with Case No. 8:15CV323 (Filing No. 68, Case No.
8:15CV323; Filing No. 3, Case No. 4:17CV3047). In
light of the language in Montin v. Moore, 846 F.3d
289 (8th Cir. 2017), the court ordered Defendants to submit a
brief addressing Montin and whether (a) the court
has subject matter jurisdiction to decide any claim made by
Guerry under the Nebraska State Tort Claims Act
(“STCA”); and (b) if the court lacks subject
matter jurisdiction to decide any claim by Guerry under the
STCA, what specific portions of the underlying pleading filed
in state court must be remanded. (Filing No. 70.)
The court stayed Defendants' motions to consolidate and
summary judgment motion in Case No. 8:15CV323 until it could
resolve these questions raised by Defendants' removal of
Case No. 4:17CV3047. (Id.)
argue that the court has supplemental jurisdiction pursuant
to 28 U.S.C. § 1367 over any “viable STCA
claim” raised by Guerry in Case No. 4:17CV3047. (Filing
No. 73 at CM/ECF p. 2.) Defendants urge the court
not to read Montin as holding that “individual
capacity claims against state officials for acts or omissions
alleged to have occurred within such officials' state
employment must actually be construed as official capacity
claims under the STCA.” (Id. at CM/ECF p. 6.)
They insist that Montin is distinguishable from Case
No. 4:17CV3047, and that the applicable legal precedent
is Kruger v. Nebraska, 820 F.3d 295 (8th Cir. 2016),
wherein the court and the Eighth Circuit Court of Appeals
addressed the merits of Kruger's removed state law claims
against state government defendants, dismissing them pursuant
to one of the STCA's statutory exceptions. (Id.
at CM/ECF pp. 2-6.) Kruger, of course, preceded
court cannot ignore the language in Montin. The
Eighth Circuit found that it “must treat the state law
malpractice claim as if it is against defendants in their
official capacities” because “all the actions or
omissions alleged occurred in the scope of defendants'
state employment, ” and despite Montin's insistence
that his state law claim was against defendants in their
individual capacities. 846 F.3d at 292-93. The Court
concluded, then, that Montin was required to bring his state
law claim under the STCA in state district court because
“any waiver of sovereign immunity” by Nebraska
did “not extend to actions brought in federal
court.” Id. at 293. This is because
“[s]tate sovereign immunity bars actions in federal
court regardless of the basis for otherwise
appropriate subject matter jurisdiction.” Id.
(emphasis added). This language suggests to the court that it
must construe Guerry's state law claims as against
Defendants in their official capacities and remand of
those claims is required. See also, 28 U.S.C.A.
§ 1441(c)(2) (West). Indeed, at the very least,
Montin presents a complex jurisdictional question
and “a district court is required to resolve all doubts
about federal jurisdiction in favor of remand.”
See Transit Cas. Co. v. Certain Underwriters at
Lloyd's of London, 119 F.3d 619, 625 (8th Cir.
court also finds judicial estoppel appropriate here. Counsel
is the same in each of these cases, and the defendants and
the claims overlap. The defendants in Case No. 8:15CV323 filed
a motion to dismiss Guerry's Complaint on the ground that
it failed to state a claim upon which relief could be
granted. (Filing No. 24.) Counsel specifically
argued that the court should dismiss Guerry's state law
claims against the defendants in their official capacities on
the same principles later iterated in Montin - the
court's ability to exercise supplemental jurisdiction
does not override Eleventh Amendment sovereign immunity of
the states. (Filing No. 25 at CM/ECF p. 5.) Counsel
further requested the court “dismiss [those state law
claims] without prejudice to Plaintiff's ability to
pursue them in state court in accordance with the
STCA.” (Id.) The court granted the motion and
dismissed Guerry's state law claims “against the
Department and prison officials in their official capacities
. . . without prejudice to Plaintiff's ability to pursue
them in state court.” (Filing No. 33 at CM/ECF
p. 4.) Not surprisingly, Guerry then filed suit in state
district court. (Filing No. 1-1, Case No.
Eighth Circuit has stated:
Judicial estoppel is an equitable doctrine which
“prevents a party from asserting a claim in a legal
proceeding that is inconsistent with a claim taken by that
party in a previous proceeding.” New Hampshire v.
Maine, 532 U.S. 742, 749, 121 S.Ct. 1808, 149 L.Ed.2d 968
(2001) (quoting 18 Moore's Federal Practice §
134.30, p. 134-62 (3d ed. 2000)). We look to three factors to
determine whether judicial estoppel should apply: (1) whether
a party's later position is “clearly
inconsistent” with its previous position; (2) whether
the party succeeded in persuading the first court to accept
its position; and (3) “whether the party seeking to
assert an inconsistent position would derive an unfair
advantage ... if not estopped.” Stallings, 447
F.3d at 1047 (quoting New Hampshire, 532 U.S. at
750-51, 121 S.Ct. 1808).
Van Horn v. Martin, 812 F.3d 1180, 1182 (8th Cir.
2016). All three apply here. Defendants ask the court to
accept removal of Guerry's state law claims from state
district court after the court granted their
request to dismiss them so that Guerry could
pursue them in state district court. Defendants ask the court
to exercise supplemental jurisdiction over Guerry's state
law claims but previously argued that it could not. First,
these positions are “clearly inconsistent.”
Second, the court accepted Defendants' position that
Guerry's state law claims were barred by sovereign
immunity when it dismissed them in Case No. 8:15CV323 without
prejudice to reassertion in state district court. And third,
Defendants are prolonging the proceedings in state and
federal court, thereby depriving Guerry of an efficient and
timely resolution of his claims. Defendants will be bound by
the relief they requested.
THEREFORE ORDERED that:
Guerry's state law claims against Defendants in Case No.
4:17CV3047 are remanded back to the District Court of Johnson
County, Nebraska. The clerk's office is directed to
provide the Clerk of the District Court of Johnson County
with a certified copy of this memorandum and order.
The Clerk of the District Court of Johnson County is
requested to notify the assigned state district court judge
in Johnson County District Court Case No. CI 17-18 that the
state law claims in Guerry's petition are remanded for
later than May 18, 2017, Defendants shall specifically and
objectively set forth (a) what additional federal claims and
against whom remain in Guerry's state petition, and (b)
what federal claims and against whom remain in Guerry's
state petition that the court already disposed of in Case No.
Defendants' motions to consolidate (Filing No.
68, Case No. 8:15CV323; Filing No. 3, Case
No. 4:17CV3047) are granted as to Guerry's federal
claims. See Fed. R. Civ. P. 42(a).
Defendants shall file an answer in Case No. 4:17CV3047 no
later than May 25, 2017. The court will thereafter issue a
progression order for the consolidated cases.
Defendants' summary judgment motion in Case No. 8:15CV323
(Filing No. 63) is denied without prejudice to
Guerry's “Motion for Objection to Summary
Judgment” (Filing No. 71, Case ...