Martin v. U.S. Department of Transportation et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , MOTION to Dismiss for Lack of Jurisdiction

W.D. Ky.February 10, 2017

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY BOWLING GREEN DIVISION ELECTRONICALLY FILED PEPPY MARTIN, ) ) PLAINTIFF ) ) ) v. ) Case. No. 1:16-CV-00124-GNS ) ) KENTUCKY TRANSPORTATION ) CABINET, UNITED STATES ) DEPARTMENT OF TRANSPORTATION ) And HART COUNTY FISCAL ) COURT ) ) DEFENDANTS. ) DEFENDANT KENTUCKY TRANSPORTATION CABINET’S MOTION TO DISMISS Pursuant to Fed. R. Civ. P. 12(g), Defendant Kentucky Transportation Cabinet (hereinafter referred to as “KYTC”), by and through counsel, respectfully joins the Defendant United States Department of Transportation’s 12(b)(1) and 12(b)(6) motions and moves for a dismissal of the Plaintiff’s Complaint against KYTC on the grounds that this court does not have subject matter jurisdiction over this matter and the Plaintiff has failed to state a claim upon which relief may be granted. In support of this Motion, the Defendant hereby incorporates the Defendant United States Department of Transportation’s Memorandum in Support, filed on January 23, 2017, in support of this motion and further relies on the accompanying Memorandum in Support. Case 1:16-cv-00124-GNS-HBB Document 28 Filed 02/10/17 Page 1 of 3 PageID #: 160 Respectfully submitted, _/s/ MATTHEW D. HENDERSON______ MATTHEW D. HENDERSON, Esq. Deputy Executive Director Kentucky Transportation Cabinet 200 Mero St. Frankfort, KY 40601 Tele: 502-564-7650 Email: Matt.henderson@ky.gov Counsel for Defendant Kentucky Transportation Cabinet Case 1:16-cv-00124-GNS-HBB Document 28 Filed 02/10/17 Page 2 of 3 PageID #: 161 CERTIFICATE OF SERVICE I certify that on this10th day of February, 2017, I electronically file the foregoing document through the CM/ECF system with the clerk, which will send a notice of electronic filing to the following: Peppy Martin 360 Chestnut Grove Road Bonnieville, KY 42713 Plaintiff Michael D. Ekman U.S. Attorney Office - Louisville 717 W. Broadway Louisville, KY 40202 Counsel for United States Department of Transportation Defendant _/s/ MATTHEW D. HENDERSON_____ Hon. Matthew D. Henderson Case 1:16-cv-00124-GNS-HBB Document 28 Filed 02/10/17 Page 3 of 3 PageID #: 162 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY BOWLING GREEN DIVISION ELECTRONICALLY FILED PEPPY MARTIN, ) ) PLAINTIFF ) ) ) v. ) Case. No. 1:16-CV-00124-GNS ) ) KENTUCKY TRANSPORTATION ) CABINET, UNITED STATES ) DEPARTMENT OF TRANSPORTATION ) And HART COUNTY FISCAL ) COURT ) ) DEFENDANTS. ) MEMORANDUM IN SUPPORT OF DEFENDANT KENTUCKY TRANSPORTATION CABINET’S MOTION TO DISMISS Defendant Kentucky Transportation Cabinet (hereinafter referred to as “KYTC”), by and through counsel, for its Memorandum In Support of Motion to Dismiss. FACTUAL BACKGROUND Plaintiff, appearing pro se, originally brought this action against the Kentucky Transportation Cabinet, the United States Department of Transportation and the Hart County Circuit Court (hereinafter collectively referred to as “Defendants”) in Hart County Circuit Court. The plaintiff’s claim includes many allegations and general complaints against the Defendants. It is difficult to identify the legal theory she is relying on as a cause of action for most of these Case 1:16-cv-00124-GNS-HBB Document 28-1 Filed 02/10/17 Page 1 of 6 PageID #: 163 allegations. Generally, they appear to be claims of negligence against the Defendants in their construction of Interstate 65. The plaintiff summarizes what she believes to be the misconduct of the Defendants in second paragraph of her complaint: “Dereliction of duty in planning, vision, and communication with interstate Landowners including this plaintiff, misappropriation of resources and funds, Fraud, bribery, kickbacks, encroachment, and general disrespect for the community allow all three defendants to be culpable of betraying public trust and depriving the Plaintiff of her right to a private life and her right to Pursue wealth and happiness for years to come.” The matter was then removed by U. S. Department of Transportation Defendant to federal court. The USDT filed a motion to dismiss for lack of subject matter jurisdiction and failure to state a claim. This defendant now joins in those motions. STANDARD OF REVIEW KYTC joins the United States Department of Transportation Defendant in its 12(b)(1) and 12(b)(6) motions to dismiss. “Challenges to subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) are categorized as either a facial attack or a factual attack.” McCormick v. Miami Univ., 693 F.3d 654, 658 (6th Cir.2012). “Under a facial attack, all of the allegations in the complaint must be taken as true.” Id., at 658. The complaint “must contain non-conclusory facts which, if true, establish that the district court had jurisdiction over the dispute.” Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430, 440 (6th Cir.2012). In assessing a complaint for failure to state a claim, [a court] must construe the complaint in the light most favorable to the plaintiff, accept all well pled factual allegations as true, and determine whether the complaint “contain[s] sufficient factual matter, accepted as true, to state a Case 1:16-cv-00124-GNS-HBB Document 28-1 Filed 02/10/17 Page 2 of 6 PageID #: 164 claim to relief that is plausible on its face.” Dudenhoefer v. Fifth Third Bancorp, 692 F.3d 410, 416 (6th Cir.2012) (alteration in original) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). ARGUMENT A. Sovereign Immunity The plaintiff’s claims are barred by the doctrine of sovereign immunity. The Eleventh Amendment to the United States Constitution states that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. The United States Supreme Court has expanded the concept of sovereign immunity beyond the text of the Eleventh Amendment, holding that “[t]o respect the broader concept of immunity, implicit in the Constitution, which we have regarded the Eleventh Amendment as evidencing and exemplifying, we have extended a State's protection from suit to suits brought by the State's own citizens.” Idaho v Coeur d'Alene Tribe, 521 U.S. 261, 267, 138 L. Ed. 2d 438, 447, 117 S. Ct. 2028, 2033 (1997). Under the Eleventh Amendment Federal Courts are precluded from “adjudicating state law claims filed against a state”. In re Shelbyville Road Shoppes, LLC, 486 B.R. 848, 850 (Bankr. W.D. Ky. 2013). The Plaintiff’s claim represents a state law claim in federal court and should not be heard by this court. The Plaintiff’s causes of action are claims of negligence against KYTC. KYTC is an agency of the state and is afforded sovereign immunity. The court has clearly held that, “[t]here can be no question that the Kentucky Transportation Cabinet is an instrumentality of the State of Kentucky (“State”) and is entitled to the protection of the Case 1:16-cv-00124-GNS-HBB Document 28-1 Filed 02/10/17 Page 3 of 6 PageID #: 165 Eleventh Amendment.” Id., at 850–51. Agencies of the Commonwealth of Kentucky are entitled to sovereign immunity and any tort action against the state is precluded. Yanero v. Davis, 65 S.W.3d 410 (Ky. 2001). “The premise is that courts should not be called upon to pass judgment on policy decisions made by members of coordinate branches of government in the context of tort actions, because such actions furnish an inadequate crucible for testing the merits of social, political or economic policy.” Id., at 519; citing, 63C Am.Jur.2d, Public Officers and Employees, § 303 (1997). The Kentucky Constitution states that “[t]he General Assembly may, by law, direct in what manner and in what courts suits may be brought against the Commonwealth. Ky. Const. § 231. “Sovereign immunity is “deeply implanted in the law of the Commonwealth through Section 231 of the Kentucky Constitution.” Once it has been determined that an entity is entitled to sovereign immunity, this Court has no right to merely refuse to apply it or abrogate the legal doctrine.” Withers v. University of Kentucky, 939 S.W.2d 340, 344 (Ky. 1997), citing Kestler v. Transit Authority of Northern Kentucky, 758 S.W.2d 38 (Ky. 1988) (internal citations omitted). The general assembly has given the Kentucky Claims Commission exclusive jurisdiction over allegations of negligence against the Commonwealth. KRS 44.070(1). As a result, neither the Kentucky Circuit Court nor this Federal Court has jurisdiction to address the plaintiff’s complaint. B. Failure to State a Claim Upon Which Relief May Be Granted The KYTC fully incorporates the USDT’s arguments from its Memorandum in Support of this motion as it relates to the plaintiff failing to state a claim upon which relief may be granted and adopts them in regard to itself. Case 1:16-cv-00124-GNS-HBB Document 28-1 Filed 02/10/17 Page 4 of 6 PageID #: 166 WHEREFORE, KYTC respectfully requests the Court to DISMISS the plaintiff’s claim in its entirety for the foregoing reasons. Respectfully submitted, ___S/MATTHEW D. HENDERSON___ MATTHEW D. HENDERSON, Esq. Deputy Executive Director Kentucky Transportation Cabinet 200 Mero St. Frankfort, KY 40601 Tele: 502-564-7650 Email: Matt.henderson@ky.gov Counsel for Defendant Kentucky Transportation Cabinet Case 1:16-cv-00124-GNS-HBB Document 28-1 Filed 02/10/17 Page 5 of 6 PageID #: 167 CERTIFICATE OF SERVICE I certify that on this 10th day of February, 2017, I electronically file the foregoing document through the CM/ECF system with the clerk, which will send a notice of electronic filing to the following: Peppy Martin 360 Chestnut Grove Road Bonnieville, KY 42713 Plaintiff Michael D. Ekman U.S. Attorney Office - Louisville 717 W. Broadway Louisville, KY 40202 Counsel for United States Department of Transportation Defendant _/s/ MATTHEW D. HENDERSON_ Hon. Matthew D. Henderson Case 1:16-cv-00124-GNS-HBB Document 28-1 Filed 02/10/17 Page 6 of 6 PageID #: 168