UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

PATRICIA S. CERRITO,

Plaintiff,

v. Case No. 08-14628

THE CHARTER TOWNSHIP OF CLINTON, 

OFFICER JAMES GILCHRIST,

Defendants.

________________________________/

OPINION AND ORDER DISMISSING PLAINTIFF’S STATE LAW CLAIMS

Pending before the court is Plaintiff Patricia S. Cerrito’s complaint, which alleges:

• Count I: “Violation of Right Against Unreasonable Search and Seizure Under the

Fourth Amendment to the United States Constitution”;

• Count II: “Violation of Right Against Unreasonable Search and Seizure Under Art.

I, § 11 of the Michigan Constitution”;

• Count III: “Deprivation of Liberty without Due Process in Violation of the

Fourteenth Amendment to the United States Constitution”;

• Count IV: “Violation of Constitutional Rights to Familial Integrity”;

• Count V: “Gross Negligence”; and

• Count VI: “Negligence.” 

Only Counts I, III, and IV state claims under federal law; the other three counts

allege claims under state law.
2

As a preliminary matter, the court has original jurisdiction over Plaintiff’s § 1983

claims (Counts I, III, and IV). 28 U.S.C. § 1331. Because Plaintiff’s state law claims

arise out of the same incident and share a common nucleus of operative fact, the court

could exercise its supplemental jurisdiction over the state law claims. 28 U.S.C. § 1367. 

However, the court now considers if granting supplemental jurisdiction is in the interest

of judicial economy, convenience, fairness, and comity. The court determines that it is

not and will dismiss Plaintiff’s state law claims.

I. BACKGROUND

Plaintiff alleges that on November 3, 2006, she reported to police that a larceny

of prescription medication and currency had occurred at her residence. Defendant

Officer James Gilchrist arrived at Plaintiff’s residence to investigate. Plaintiff alleges

that Defendant Gilchrist accused Plaintiff’s son Stephen A. Donovan of the larceny, and

Defendant Gilchrist subsequently arrested Donovan on the basis of an outstanding

bench warrant on an unrelated matter. Plaintiff alleges that after leaving her home,

Defendant Gilchrist later returned to Plaintiff’s home, forced his way inside the

residence, physically and verbally assaulted Plaintiff, and proceeded to conduct a

warrantless search of Plaintiff’s home.

II. DISCUSSION

Plaintiff brings state law claims for an illegal search and seizure under the

Michigan Constitution, gross negligence, and negligence against Defendants James

Gilchrist, Clinton Township, and Clinton Township Police Department. A district court

has the power to dismiss or remand claims sua sponte for lack of subject matter
3

jurisdiction. See, e.g., Douglas v. E.G. Baldwin & Assocs., 150 F.3d 604, 607 (6th Cir.

1998). A district court has original jurisdiction over claims under either federal question

jurisdiction pursuant to 28 U.S.C. § 1331 or diversity jurisdiction pursuant to 28 U.S.C. §

1332. In some circumstances, additional claims alleging violations of only state law

may be heard under the supplemental jurisdiction granted pursuant to 28 U.S.C. §

1367. 

In United Mine Workers of America v. Gibbs, 383 U.S. 715 (1966), the Supreme

Court broadly authorized federal courts to assert jurisdiction over state law claims when

there existed a “common nucleus of operative fact” compromising “but one

constitutional ‘case,’” so long as the court had original jurisdiction over at least one

claim. Gibbs, 383 U.S. at 725. While this decision granted district courts broad power

over pendent state claims, it also recognized discretion in hearing such claims: “pendent

jurisdiction is a doctrine of discretion, not of plaintiff’s right. Its justification lies in

considerations of judicial economy, convenience and fairness to litigants; if these are

not present a federal court should hesitate to exercise jurisdiction over the state claims .

. . .” Id. at 726. The Court stated that pendent party jurisdiction may be denied “if the

federal claims are dismissed before trial,” if “it appears that the state issues substantially

predominate,” or “if the likelihood of jury confusion” would be strong without separation

of the claims. Id. at 726-27.

Congress later codified the power of a federal court to hear state claims. 28

U.S.C. § 1367. Similar to the standards articulated in Gibbs, the statute recognizes a

court’s discretion to decline to exercise supplemental jurisdiction if:

(1) the claim raises a novel or complex issue of State law,
4

 (2) the claim substantially predominates over the claim or claims over which the

district court has original jurisdiction,

(3) the district court has dismissed all claims over which it has original

jurisdiction, 

(4) in exceptional circumstances, there are other compelling reasons for

declining jurisdiction.

Id. Subsections two and four are applicable to the case at bar.

Though § 1367 technically superseded Gibbs, courts agree that “the exercise of

discretion . . . is still informed by whether remanding the pendent state claims comports

with the underlying objective of ‘most sensibly accommodating’ the values of ‘economy,

convenience, fairness and comity.’” Executive Software N. Am., Inc. v. U.S. Dist. Court,

24 F.3d 1545, 1557 (9th Cir. 1994) (citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343,

350 (1988)); see also H.R. REP. NO. 101-734, at 29 (1990), reprinted in 1990

U.S.C.C.A.N. 6860, 6875 (indicating that, under Gibbs and “current law, subsection (c)

requires the district court, in exercising its discretion, to undertake a case-specific

analysis”). 

A. DISMISSAL PURSUANT TO 28 U.S.C. § 1367(c)(4)

A district court may deny supplemental jurisdiction pursuant to § 1367(c)(4) if, “in

exceptional circumstances, there are other compelling reasons for declining

jurisdiction.” 28 U.S.C. § 1367(c)(4). “Congress’s use of the word ‘other’ to modify

‘compelling reasons’ indicates that what ought to qualify as ‘compelling reasons’ for

declining jurisdiction under subsection (c)(4) should be of the same nature as the

reasons that gave rise to the categories listed in subsections (c)(1)-(3).” Executive

Software, 24 F.3d at 1557. Once the court decides that there are compelling reasons to
5

decline jurisdiction, the factors that inform this decision usually will demonstrate how the

circumstances confronted are “exceptional.” Id. at 1558.

1. “Compelling Reasons” for Dismissing Plaintiff’s State Law Claims

Courts generally accept that “compelling reasons for the purposes of [§ 1367]

(c)(4) . . . should be those that lead a court to conclude that declining jurisdiction best

accommodates the values of economy, convenience, fairness and comity.” Id. at 1557

(internal citations omitted); see also Palmer v. Hosp. Auth. of Randolph County, 22 F.3d

1559, 1569 (11th Cir. 1994). When deciding whether to agree or decline to exercise

jurisdiction over supplemental state claims, the court considers the circumstances of the

particular case, the nature of the state law claims, the character of the governing state

law, and the relationship between the state and federal claims (including the possibility

of jury confusion).

Litigation in federal court that mixes federal law claims with supplemental state

law claims can cause procedural and substantive problems; in the interests of judicial

economy and convenience, these problems should be avoided. Id. Even where, as in

the present case, the federal and state claims arise out of the same factual background,

the simultaneous litigation of such claims may prolong pre-trial practice, complicate the

trial, lengthen and make more complex the jury instructions leading to potential

confusion of the jury, result in inconsistent verdicts and cause post-trial problems with

respect to judgment interest and the availability of prevailing party attorney fees. 

Consequently, the apparent judicial economy and convenience to the parties of a court

exercising supplemental jurisdiction over state claims may be substantially offset by

problems simultaneously created. The court will review the federal and state claims in
6

some detail to determine if supplemental jurisdiction should be exercised over the state

claims.

a. Applicable Legal Standards

The federal standard for evaluating whether excessive force was used by police

officers is an objective one: “the question is whether the officers’ actions are ‘objectively

reasonable’ in light of the facts and circumstances confronting them, without regard to

their underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397 (1989)

(internal citations omitted); see also Saucier v. Katz, 533 U.S. 194, 210 (2001). 

Plaintiff’s equivalent state law claims, on the other hand, focus almost entirely on

the failure of Defendants Clinton Township and Clinton Township Police Department to

properly train Defendant Gilchrist. These claims are governed by state law, and the

standards for proving a claim will vary from the standards of the federal claims against

the individual defendant. Exercising supplemental jurisdiction over the state law claims

would require additional testimony, evidence, and a probing into a Defendants Clinton

Township and Clinton Township Police Department training of Defendant Gilchrist. 

Additionally, the state law claims would require a jury to understand, distinguish, and

apply two distinct standards of reasonableness in the same case. This would certainly

result in more lengthy jury instructions, jury confusion, and inconvenience to the parties

that would not be present if the claims were tried separately. 

b. Immunity

Plaintiff’s state and federal law claims also apply different versions of immunity, a

further complication to their being tried together. Under federal law, “government

officials performing discretionary functions generally are granted a qualified immunity
7

and are ‘shielded from liability for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person would

have known.’” Wilson v. Layne, 526 U.S. 603, 609 (1999) (quoting Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982)). In determining if a government official is entitled to such

qualified immunity, a court must first determine if a federal right was violated and, if so,

whether that right was “so clearly established that a reasonable official would

understand that his particular conduct would violate that right.” Wilkins v. City of Royal

Oak, No. 04-73276, 2005 U.S. Dist. LEXIS 42474, at * 26 (E.D. Mich. August 17, 2005). 

A court must also determine if the officer was performing a discretionary function at the

time. Id. This immunity is relatively straightforward and turns on the objective

reasonableness of the official’s actions. See generally Harlow, 457 U.S. 800. 

Immunity under state law is remarkably different. as it applies a subjective

standard of review to the official’s actions. Michigan statutory law shields “a

governmental agency . . . from tort liability if the agency is engaged in the exercise or

discharge or a governmental function.” Mich. Comp. Laws § 691.1407(1). 

To further complicate the matter, application of this immunity is not a

straightforward process:

Governmental immunity [under Michigan law] has been, at best, a

confusing area of the law for the bench and bar of our state for many

years and, unfortunately, attempts to explain it have often resulted in

increasing the quagmire in which we collectively have found ourselves on

this subject. 

Sudul, 562 N.W.2d 478, 490 (Mich. Ct. App. 1997) (Murphy, J., dissenting). The

differences in the applicability of governmental immunity between Plaintiff’s federal and

state claims, as well as the “quagmire” that has evolved regarding the application of
8

such immunity to state claims under Michigan law, are additional factors that would

complicate the simultaneous trial of federal claims, confuse the jury, and inconvenience

the parties.

c. Vicarious Liability

Another area of conflict between the federal and state claims in the present issue

involves the question of vicarious liability. The law of municipal liability under § 1983 is

governed by Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978) and its progeny. 

Under this line of cases, “the doctrine of respondeat superior is not a basis for rendering

municipalities liable under § 1983 for the constitutional torts of their employees.” 

Monell, 436 U.S. at 662 n.7. Rather, municipal liability depends upon whether

“someone in a supervisory capacity . . . at least implicitly authorized, approved, or

knowingly acquiesced in the unconstitutional conduct of the offending employee.” 

Sudul, 562 N.W.2d at 482. 

In Michigan, the law of municipal liability is markedly different from that under §

1983. Unlike federal municipal liability, which examines whether the municipality

authorized or acquiesced in the alleged conduct, state liability is precluded by the

immunity statute, Mich. Comp. Laws § 691.1407, which states: “a governmental agency

is immune from tort liability if the agency is engaged in the exercise or discharge or a

governmental function.” Mich. Comp. Laws § 691.1407(1). Under the statute, a

municipality can only be held liable “with respect to providing medical care or treatment

to a patient.” Mich. Comp. Laws § 691.1407(4).

Under the Michigan provision, municipalities enjoy broad immunity and there is

no question as to any authorization or acquiescence. As such, a municipality could be
9

held liable only under the federal claim. This dichotomy would likely confuse the jury,

and could reasonably lead to a verdict that exonerates the governmental agency from §

1983 liability simply because it cannot be liable for the state tort actions. Such a result

would be contrary to the interest of justice.

d. Recoverable Damages

Recoverable damages are drastically different as to Plaintiff’s federal and state

claims. Under federal law, a successful § 1983 Plaintiff may recover punitive damages

against individual defendants. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247

(1981). In direct contrast, “[i]n Michigan, the courts . . . refuse to allow the recovery of

punitive damages.” Fellows v. Superior Prods. Co., 506 N.W.2d 534, 536 (Mich. Ct.

App. 1993) (quoting In re Disaster at Detroit Metro. Airport, 750 F. Supp. 793, 805 (E.D.

Mich. 1989)). As a result, Plaintiff would be entitled to seek punitive damages against

the officers for his § 1983 claims but not for the remainder of his claims.

Punitive damages, by definition, “are not intended to compensate the injured

party, but rather to punish the tortfeasor.” City of Newport, 453 U.S. at 266. The jury

would be instructed that they are permitted to “punish” for an egregious Fourth

Amendment excessive force violation but that they are not so permitted for even an

obvious violation of state assault and battery law, gross negligence, or intentional

infliction of emotional distress. This difference could easily lead to an artificially – and

unfairly – high award for a proven § 1983 claim in order to “compensate” for the jury’s

inability to award punitive damages for the state law claims. It could also result in an

unfairly low award if the jury were to incorrectly conclude that, since Michigan law does

not permit punitive damages, the proven federal claim is not deserving of such an award
10

either. In either scenario, the different treatment of punitive damages under state and

federal law could result in jury confusion, lengthy jury instructions, and an unfair verdict.

e. Compelling Reasons Exist to Dismiss Plaintiff’s State Claims

The potential for jury confusion has been identified as a compelling reason for a

district court to decline to exercise supplemental jurisdiction. Gibbs, 383 U.S. at 727;

Barbetta v. Chemlawn Services Corp., 669 F. Supp. 569, 571 (W.D.N.Y. 1987); Gasque

v. King, No. 90-00470, 1991 U.S. Dist. LEXIS 19260, at *5-6 (M.D.N.C. 1991); Padilla v.

City of Saginaw, 867 F. Supp. 1309, 1315 (E.D. Mich. 1994); Blue Dane Simmental

Corp. v. Am. Simmental Ass’n, 952 F. Supp. 1399, 1404 (D. Neb. 1997); see also

Charles A. Wright & Arthur R. Miller, FEDERAL PRACTICE & PROCEDURE § 3567.1, n. 46.

(2d ed. 1984). In considering this potential, as well as the interests of economy,

convenience, fairness, and comity, the court finds that the state claims should be

dismissed. To exercise supplemental jurisdiction over these claims would result in

confusion, inconvenience and potentially unfair results given the systematic disparity

between these claims, including their various legal standards, available defenses,

potential immunity from suit, potential vicarious liability and potentially recoverable

damages. Therefore, the court will dismiss without prejudice the state law claims for an

illegal search and seizure under the Michigan Constitution, gross negligence, and

negligence.

2. This case presents “Exceptional Circumstances”

Courts must ensure that the reasons for declining to exercise supplemental

jurisdiction identified as “compelling” are not deployed in circumstances that are not
11

“exceptional.” Executive Software, 24 F.3d at 1558. Courts agree that the inclusion of

the phrase “exceptional circumstances” limits the broad discretion that district courts

once entertained under Gibbs to deny supplemental jurisdiction in any case. See, e.g.,

Itar-Tass Russian News Agency v. Russian Kurier, Inc., 140 F.3d 442, 448 (2d Cir.

1998); Executive Software, 24 F.3d at 1558. However, Congress only “sounded a note

of caution” and did not restrict a district court’s ability to dismiss claims only in cases

that were “ridiculous” or “impractical.” Executive Software, 24 F.3d at 1558, 1560 (citing

Hays County Guardian v. Supple, 969 F.2d 111 (5th Cir. 1992) (holding that exceptional

circumstances were present when parallel state proceedings were underway and

therefore the adjudication of state claims would be a “waste of judicial resources.”)). 

The court finds that exceptional circumstances are present in this case in

weighing the likelihood of jury confusion, judicial inefficiency, substantial inconvenience

to the parties, and potential unfairness in outcome which could readily result by

attempting to resolve all claims in a single trial. Though there would be some

duplication of effort required by Plaintiff and Defendants in this case if Plaintiff decides

to pursue both claims, the court finds that any advantages to be gained by trying all

claims together are outweighed by the potential for confusion of the issues, legal

theories, defenses, and possible relief. Thus, the court will not exercise supplemental

jurisdiction and will dismiss without prejudice Plaintiff’s state law claims for an illegal

search and seizure under the Michigan Constitution, gross negligence, and negligence.

B. DISMISSAL PURSUANT TO 28 U.S.C. § 1367(c)(2)

Separately, a district court may decline the exercise of supplemental jurisdiction
12

pursuant to section 1367(c)(2) if “the [state] claim substantially predominates over the

claim or claims over which the district court has original jurisdiction.” 28 U.S.C. §

1367(c)(4). As already discussed in detail, the state claims presented here implicate

myriad problems including the need to introduce evidence inapplicable to – indeed

inconsistent with – the evidence relevant to the federal claim, additional witnesses,

disparate legal theories on both claims and defenses and significantly expanded and

contradictory jury instructions. The court finds that the state claims presented in this

case would, for these reasons, predominate over the § 1983 federal claim over which

the court has original jurisdiction. Pursuant to 28 U.S.C. § 1367(c)(2), the court will not

exercise supplemental jurisdiction and will dismiss without prejudice all state law claims.

III. CONCLUSION

For the reasons stated above, IT IS ORDERED that all of Plaintiff’s state law

claims including, without limitation, claims of illegal search and seizure under the

Michigan Constitution (Count II), claims of gross negligence (Count V) and claims of

negligence (Count VI), are hereby DISMISSED WITHOUT PREJUDICE.

IT IS FURTHER ORDERED that only Plaintiff’s claims arising under federal law,

42 U.S.C. § 1983, as violations of the United States Constitution (Counts I, III, and IV)

now remain before this court.

s/Robert H. Cleland 

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: November 19, 2008
S:\Cleland\JUDGE'S DESK\C2 ORDERS\08-14628.CERRITO.1983.DismissStateLawClaims.ljd.wpd

13

I hereby certify that a copy of the foregoing document was mailed to counsel of record

on this date, November 19, 2008, by electronic and/or ordinary mail.

s/Lisa G. Wagner 

Case Manager and Deputy Clerk

(313) 234-5522