UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

RACHEL ROBERSON,

Plaintiff,

v. Case No. 08-CV-14022

CITY OF PONTIAC, et al.,

Defendants.

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OPINION AND ORDER REMANDING PLAINTIFF’S STATE LAW CLAIMS

Pending before the court is Plaintiff Rachel Roberson’s complaint, which

alleges the following counts:

• Count I, ethnic intimidation under Mich. Comp. Laws § 750.147(b).

• Count II, excessive force during an arrest/detention in violation of the

Fourth Amendment, actionable under 42 U.S.C. § 1983.

• Count III, assault and/or battery.

• Count IV, violation of the Michigan Freedom of Information Act.

Only count II states a claim under federal law; counts I, III, and IV allege

claims under state law.

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

count II because it is a constitutional claim actionable under § 1983. 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,
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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 remand Plaintiff’s state law claims.

I. BACKGROUND

Plaintiff alleges that on June 22, 2005, she was lawfully inside her home

when Defendants raided her home, conducted an intrusive search, and assaulted

her. Plaintiff also alleges a video or audio recording was made of the June 22

events, which is still in Defendants’ possession.

II. STATE LAW CLAIMS

Plaintiff brings state law claims for ethnic intimidation, assault, battery, and

a violation of the Michigan Freedom of Information Act. 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., 150 F.3d 604, 607

(6th Cir. 1998). A federal district court has original subject-matter jurisdiction for

claims exhibiting either federal question jurisdiction pursuant to 28 U.S.C. § 1331

or diversity jurisdiction pursuant to 28 U.S.C. § 1332. In some circumstances, a

federal court may hear additional claims alleging violations of only state law

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
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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 a district court may deny pendent party jurisdiction “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:

(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
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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. Remand 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

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 Remanding 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
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whether to decline 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

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,
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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 are intentional torts. See Young v. Morrall, 101 N.W.2d 358, 362 (Mich.

1960); Smith v. Dept. of Public Health, 410 N.W.2d 749, 771 (Mich. 1987); 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 the claims, 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 the defendant officers’

alleged mental states 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 Defendants’ use of force alone will not satisfy Plaintiff’s

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

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. 
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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. Comp.

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. 

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
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Concerts, Inc., 453 U.S. 247 (1981). In direct contrast, Michigan courts generally

“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)) (disallowing punitive

damages under a wrongful death action); see also Sudul, 562 N.W.2d at 486

(recognizing award of both compensatory and punitive damages as to § 1983

claim but only compensatory damages on assault and battery, gross negligence

and intentional infliction of emotional distress claims); Janda v. City of Detroit,

437 N.W.2d 326, 329 (Mich. App. 1989) (recognizing award of both

compensatory and punitive damages as to § 1983 claim but only compensatory

damages on assault and battery claim). As a result, Plaintiff would be entitled to

seek punitive damages against the officers for her § 1983 claims but not her

remaining state law 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 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
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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 Remand 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 the potential for jury confusion, as well as the interests of economy,

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

remanded. 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 and potentially recoverable damages. 

Therefore, the court will remand the state law claims of ethnic intimidation,

assault, battery, and violation of the Michigan Freedom of Information Act. 
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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 remand 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

case if Plaintiff decides to pursue both federal and state law claims, the court

finds that any advantages to be gained by trying all claims together are
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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 remand Plaintiff’s state law claims.

B. Remand 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 claims, 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 remand all of Plaintiff’s state law claims.

III. CONCLUSION

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

claims of ethnic intimidation (Count I), assault and/or battery (Count III) and

violation of Michigan’s Freedom of Information Act (Count IV) are REMANDED. 
S:\Cleland\JUDGE'S DESK\C1 ORDERS\08-14022.ROBERSON.RemandStateClaims.wpd

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Plaintiff’s claim arising under federal law (Count I) remains before the

court.

s/Robert H. Cleland 

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: October 14, 2008

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

record on this date, October 14, 2008, by electronic and/or ordinary mail.

s/Lisa G. Wagner 

Case Manager and Deputy Clerk

(313) 234-5522