UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

EUGENE DEMICK,

Plaintiff,

v. Case No. 09-10480

AMY BRETES,

Defendant.

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OPINION AND ORDER DISMISSING PLAINTIFF’S STATE LAW CLAIMS

Pending before the court is Plaintiff’s complaint which alleges the following

counts:

• Count I, violations of constitutional rights secured by the Fourth

Amendment and actionable under 42 U.S.C. § 1983

• Count II, assault and battery

• Count III, false arrest and imprisonment

• Count IV, malicious prosecution

Only the first count states a claim under federal law; the other three counts

allege claims under state law.

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

1983 claim. 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

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On March 19, 2009, Defendants filed an answer and affirmative defenses.

Defendants stated therein that “[t]he Court should dismiss the supplemental state

tort courts on its own as not being readily subject to adjudication along with the

§1983 claim by a single jury.” The entry of an order in this form is an entirely

common practice for this court, see, e.g., Baxter v. Bostic, case number

08-10291 [Dkt. # 32]; Sullivan v. City of Detroit, case number 08-12731 [Dkt. # 9].

It may be that Defendants’ counsel’s awareness of the court’s common practice

led him to include the suggestion--which, by the way, is not an affirmative

defense--in their list of affirmative defenses. In any event, the entry of this order

neither springs from nor is dependent upon Defendants’ suggestion.

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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.1

I. BACKGROUND

Plaintiff’s complaint alleges that on August 23, 2008, Plaintiff and his wife

pulled their truck over on the side of US-127 in order to search for a piece of

plastic which had come off of their vehicle. (Compl. ¶ 4.) Plaintiff contends that

Defendant Officer Amy Bretes, along with another officer, pulled up behind

Plaintiff. (Id. ¶ 6.) Upon investigation, the officers found an open container of

beer in the vehicle, which Plaintiff’s wife acknowledges was hers. (Id. ¶ 6.) 

Plaintiff states that he walked back toward his vehicle at which time Defendant

sprayed a chemical spray in Plaintiff’s face. (Id. ¶¶ 8-9.) Plaintiff contends that

the use of this force was unreasonable. (Id. at ¶¶ 12-13.) Plaintiff also contends

that he was arrested and prosecuted without probable cause for resisting arrest. 

(Id. ¶¶ 12-21.)

II. DISCUSSION

A district court has the power to dismiss or remand claims sua sponte for

lack of subject matter jurisdiction. See, e.g., Douglas v. E.G. Baldwin & Assocs.,

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150 F.3d 604, 607 (6th Cir. 1998). Claims with original jurisdiction in a district

court have 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: “[P]endent 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 (2006). Similar to the standards articulated in Gibbs, the

statute recognizes a court’s discretion to decline to exercise supplemental

jurisdiction if:

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

 (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, or

(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) (2006). “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

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subsections (c)(1)-(3).” Executive Software, 24 F.3d at 1557. Once the court

decides that there are compelling reasons to 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

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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

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 officers’ subjective mental state. Under Michigan law, assault and

battery, gross negligence and intentional infliction of emotional distress are all

intentional torts. See Young v. Morrall, 101 N.W.2d 358, 362 (Mich. 1960); Sudul

v. City of Hamtramck, 562 N.W.2d 478, 479 (Mich. Ct. App. 1997). As such, the

question of intent and/or willfulness is the central element of each claim, and the

focus is on the mental state of the alleged wrongdoer to determine if he acted

intentionally, arbitrarily or maliciously. Young, 101 N.W.2d at 362. 

Exercising supplemental jurisdiction over the state law claims would

require additional testimony, evidence and a probing into a defendant officer’s

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alleged mental state at the time of the alleged assault. 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. Available Defenses

The nature and use of available defenses also differs considerably in 

Plaintiff’s state and federal claims. Because even deadly force is constitutionally

permissible under some circumstances (see, e.g., Tennessee v. Garner, 471

U.S. 1 (1985)), proof of Defendant’s use of force alone will not satisfy Plaintiff’s

federal claim. Miller v. Taylor, 877 F.2d 469, 472 (6th Cir. 1989). Instead, to

succeed under § 1983, “Plaintiff [must] show that [the Officer’s] use of force was

unjustified in order to state a constitutional deprivation.” Id. Such is not the case

for Plaintiff’s state law claims. Instead, proof of force plus subjective intent will

shift the burden to Defendant to justify such force as reasonable and necessary

under the affirmative defenses of self-defense or defense of others. Id.; see also

Ealey v. Detroit, 375 N.W.2d 435, 437 (Mich. Ct. App. 1985). This shifting

burden, coupled with the different application of defenses to different claims at

different stages, will almost certainly lead to jury confusion and inefficiency.

c. Immunity

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

immunity, a further complication in their being tried together. Under federal law,

“government officials performing discretionary functions generally are granted a

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qualified immunity 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. 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. Unlike federal qualified immunity,

officers facing claims of intentional torts “are not shielded by [Michigan’s]

governmental immunity statute.” Sudul, 562 N.W.2d at 479; see Mich. Compl.

Laws § 691.1407(3). Unlike the immunity afforded from § 1983 claims, immunity

from state torts under Michigan law depends upon an officer’s subjective intent at

the time of the alleged assault. And, 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. 

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Sudul, 562 N.W.2d at 490 (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

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.

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 4th 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

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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 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. American 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

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state law claims of assault and battery, false arrest and imprisonment, and

malicious prosecution.

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 “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 the defense in this

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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 all state law claims.

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

Separately, a district court may decline the exercise of supplemental

jurisdiction 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

Plaintiff’s state law claims for assault and battery, false arrest and

imprisonment, and malicious prosecution do not have original jurisdiction in

federal court. The inclusion of Plaintiff’s state claims with Plaintiff’s claim for

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excessive force under 42 U.S.C. § 1983 could lead to jury confusion, judicial

inefficiency, inconvenience to the parties and an unfair outcome. Additionally, all

fo the state law claims would predominate over Plaintiff’s § 1983 federal claim. 

Pursuant to 28 U.S.C. §§ 1367(c)(2) and (4), the court exercises its discretion to

decline supplemental jurisdiction over Plaintiff’s state law claims. Accordingly,

IT IS ORDERED that all of Plaintiff’s state law claims including, without

limitation, assault and battery (Count II), false arrest and imprisonment (Count

III), and malicious prosecution (Count IV), are hereby DISMISSED WITHOUT

PREJUDICE.

IT IS FURTHER ORDERED that only Plaintiff’s claim arising under federal

law, 42 U.S.C. § 1983 (Count I) now remains before this court.

s/Robert H. Cleland 

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: March 27, 2009

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

record on this date, March 27, 2009, by electronic and/or ordinary mail.

s/Lisa G. Wagner 

Case Manager and Deputy Clerk

(313) 234-5522

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