IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

DAYMON BURTON, by his mother :

Mary Ann Carter,

:

Plaintiff,

:

v. CA 15-00207-C

:

LEPOLEAN PETERSON, individually 

and in his official capacity as Principal :

at A.L. Johnson High School,

:

Defendant.

MEMORANDUM OPINION AND ORDER

This matter comes before the Court on the notice of removal (Doc. 1), plaintiff’s 

motion to remand (Doc. 7), defendant Peterson’s opposition to the remand motion (Doc. 

10), and the Rule 26(f) Report filed by the parties on June 1, 2015 (Doc. 11). Upon 

consideration of the foregoing pleadings, it is determined that plaintiff’s motion to 

remand should be GRANTED.

I. Background

In the complaint (Doc. 1-2, COMPLAINT), filed in the Circuit Court of Marengo

County, Alabama on March 16, 2015, plaintiff, Daymon Burton by his mother Mary Ann 

Carter, asserts three claims against Lepolean Peterson, in his individual and 

professional capacities, and a number of unidentified fictitious parties—for intentional 

infliction of emotional distress and negligent and wanton behavior (see id. at 3-6).1 All of 

 1 The assertion of claims on behalf of an unidentified class of plaintiffs and against 

undisclosed fictitious defendants is irrelevant for the purposes of deciding the motion to

remand (see id. at 3-4.)

Case 2:15-cv-00207-C Document 12 Filed 06/23/15 Page 1 of 9
2

plaintiff’s claims arise out of an incident “involving a female student” that occurred on 

the campus of A. L. Johnson High School during February 2015. It is alleged because of 

this incident “Plaintiff was grilled extensively by Defendant Lepolean Peterson, ... and 

referred ... to the Juvenile Court of Marengo County without full knowledge of what 

had taken place.” The Juvenile Judge required the plaintiff to report for counseling 

sessions but the plaintiff chose to return to school instead. The defendant refused 

plaintiff entry to the school and after the police were called, plaintiff left campus to 

avoid arrest. (Doc. 1-2, COMPLAINT, at ¶¶ 7-10.) 

Plaintiff’s first claim, a state law claim, is labeled “INTENTIONAL INFLICTION 

OF EMOTIONAL DISTRESS” and seeks punitive damages, interests and costs. (Id., at

¶¶ 11-14 (“On or about February 2015, the Plaintiff was accused of misconduct with a 

female student by Defendants who had no proof of his innocence or guilt, but took 

adverse action against him, first sending him to Juvenile Court as well as calling the 

police to have him arrested when he returned to school. ... Defendants imposed harsh

disciplinary actions upon the Plaintiff without cause, treating him like a common 

criminal. ... As a result of this action, Plaintiff suffered severe emotional distress and 

humiliation as well as violation of his rights.”).)

Plaintiff’s second claim arises under state law as well and is labeled 

“NEGLIGENT & WANTON BEHAVOIR.” Plaintiff alleges that the defendants “acted 

negligently when they failed to respect [his] rights ... and imposed harsh disciplinary 

actions upon him without due process or knowledge of his guilt or innocence.” The 

wanton conduct occurred when Mr. Peterson referred the plaintiff to Juvenile Court 

without conducting a complete investigation and then denying him entry to the school 

as well as calling the police to have plaintiff arrested. (Id., at ¶¶ 15-19.) Again, plaintiff 

asks for an award of punitive damages, interests and costs.

Case 2:15-cv-00207-C Document 12 Filed 06/23/15 Page 2 of 9
3

Plaintiff’s third claim is labeled “INTENTIONAL INFLICTING OF 

EMOTIONAL DISTRESS & NEGLIGENT & WANTON BEHAVOIR.” This third claim

appears to be an attempt to combine the first two claims and plead them against a 

number of fictitious party defendants. Regardless of plaintiff’s intent, Count III does 

not raise issues not presented in Counts I and II.2

Peterson was served with the summons and complaint on March 17, 2015 (Doc. 

1, at 1) and filed the notice of removal on April 15, 2015 (id.). Therein, he contends that 

this Court has “original jurisdiction under the provisions of 28 U.S.C. § 1331 and 28 

U.S.C. § 1367, and [this action] is one which may be removed ... pursuant to the 

provisions of 28 U.S.C. §1441, in that it is a civil action that arises under the 

Constitution, laws, or treaties of the United States.” (Id., at 2.) Since plaintiff did not 

expressly identify any claim as arising under the Constitution or any particular federal 

statute, defendant argues that the original jurisdiction of this Court has been invoked by 

the language in plaintiff’s incorporated statement of facts, i.e., “Marengo County Board 

of Education Members, Superintendents, Administrators, Principals, Staff and others, 

with the assistance of law enforcement, Court employees and politicians and others 

have systematically threatened students, over the past several years, in a manner that 

was unfair, bias, in violation of their civil rights and criminal, as well as contrary to the 

U.S. Constitution, without due process...” (Doc. 1-2, ¶ 6; Doc. 1, ¶ 3a.)

 2 Plaintiff has attempted to clarify the cause of action against Peterson in two postremoval pleadings. In his brief in support of the motion to remand plaintiff informs, “the only 

prayer for relief sought was for the state tort for intentional infliction of emotional distress.” 

(Doc. 9, at 1.) Consistently, in the Report of Parties filed pursuant to Fed. R. Civ. P. 26(f), he lists 

the claim for the intentional infliction of emotional distress as “our cause of action.” (Doc. 11, at 

1.)

Case 2:15-cv-00207-C Document 12 Filed 06/23/15 Page 3 of 9
4

Plaintiff filed his motion to remand on April 28, 2015 (Doc. 7) and a brief in 

support of his motion on May 6, 2015 (Doc. 9).3 Peterson’s response in opposition was 

filed on May 11, 2015 (Doc. 10). Based upon the contents of the removal petition (Doc. 1) 

and the response in opposition (Doc. 10), the undersigned appreciates Peterson’s sole 

argument to be that removal is proper because the plaintiff has pled a claim arising 

under the United States Constitution. (See Docs. 1 and 10.) 

II. Analysis

A. Magistrate Judge Jurisdiction.

This case, filed April 15, 2015, has been proceeding before the undersigned

United States Magistrate Judge with the implicit consent of the plaintiff and the 

defendant. (See Doc. 4, notice of assignment to Magistrate Judge for all purposes, 

including trial, entered April 17, 2015.) Since the time the parties received notice that 

this case was referred to the undersigned, neither has requested reassignment to a 

district judge. The undersigned has entered a preliminary scheduling order, and orders 

relating to the pending motions to remand and to dismiss. The motion to remand is 

now ripe and there does not appear to be any reason not to enter an order resolving the 

jurisdictional issue on consent of the parties. Up to this point in the litigation, it is fair to 

infer that the plaintiff and the defendant have “continual[ly] participat[ed] in pretrial 

proceedings [for an extended period of time to] justif[y] the inference of consent from [ ] 

litigant[s] aware of the need to consent.” Chambless v. Louisiana-Pacific Corp., 481 F.3d 

1345, 1350-51 (11th Cir. 2007); see also Roell v. Withrow, 538 U.S. 580, 590 (2003) (Inferring 

consent “where, as here, the litigant or counsel was made aware of the need for consent 

and the right to refuse it, and still voluntarily appeared to try the case before the 

 3 This brief was filed in response to the Court’s Order of May 1, 2015 (Doc. 8).

Case 2:15-cv-00207-C Document 12 Filed 06/23/15 Page 4 of 9
5

Magistrate Judge . . . checks the risk of gamesmanship by depriving parties of the 

luxury of waiting for the outcome before denying the magistrate judge’s authority. 

Judicial efficiency is served; the Article III right is substantially honored.”).

B. Removal Jurisdiction in General.

There can be no doubt but that “[f]ederal courts are courts of limited jurisdiction, 

and there is a presumption against the exercise of federal jurisdiction, such that all 

uncertainties as to removal jurisdiction are to be resolved in favor of remand.” Russell 

Corp. v. American Home Assurance Co., 264 F.3d 1040, 1050 (11th Cir. 2001) (citation 

omitted); see also Allen v. Christenberry, 327 F.3d 1290, 1293 (11th Cir.) (“[R]emoval 

statutes should be construed narrowly, with doubts resolved against removal.”), cert. 

denied, 540 U.S. 877, 124 S.Ct. 277, 157 L.Ed.2d 140 (2003); University of South Alabama v. 

American Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999) (“Because removal jurisdiction 

raises significant federalism concerns, federal courts are directed to construe removal 

statutes strictly. . . . Indeed, all doubts about jurisdiction should be resolved in favor of 

remand to state court.”); see Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 

377, 114 S.Ct. 1673, 1675, 128 L.Ed.2d 391 (1994) (“Federal courts are courts of limited 

jurisdiction. They possess only that power authorized by Constitution and statute, 

which is not to be expanded by judicial decree[.]” (internal citations omitted)). 

Moreover, the removing defendant must bear “the burden of demonstrating federal 

jurisdiction.” Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 n.4 (11th Cir. 1998) 

(citation omitted); see also McCormick v. Aderholt, 293 F.3d 1254, 1257 (11th Cir. 2002) 

(“[T]he party invoking the court’s jurisdiction bears the burden of proving, by a 

preponderance of the evidence, facts supporting the existence of federal jurisdiction.”). 

Stated differently, because federal courts are courts of limited jurisdiction “[i]t is . . . 

presumed that a cause lies outside this limited jurisdiction, and the burden of 

Case 2:15-cv-00207-C Document 12 Filed 06/23/15 Page 5 of 9
6

establishing the contrary rests upon the party asserting jurisdiction[.]” Kokkonen, supra, 

511 U.S. at 377, 114 S.Ct. at 1675 (internal citations omitted). 

C. Removal Jurisdiction Based on the Existence of a Federal Question.

This Court has “original jurisdiction of all civil actions arising under the 

Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Where, as here, 

jurisdiction is predicated on a determination of whether an action “arises under” the 

Constitution or federal law, “the test ordinarily applied is whether a federal question 

appears on the face of the plaintiff's well-pleaded complaint.” Cmty. State Bank v. Strong,

651 F.3d 1241, 1251 (11th Cir.2011) (citing Louisville & Nashville R. Co. v. Mottley, 211 U.S. 

149, 152, 29 S.Ct. 42, 53 L.Ed. 126 (1908)). Thus, “[a]s a general rule, absent diversity 

jurisdiction, a case will not be removable if the complaint does not affirmatively allege a 

federal claim.” Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 6, 123 S.Ct. 2058, 156 L.Ed.2d 

1 (2003). 

The well-pleaded complaint “rule makes the plaintiff the master of the claim; he 

or she may avoid federal jurisdiction by exclusive reliance on state law. Caterpillar Inc. v. 

Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987). However, the

“necessary corollary to the well-pleaded complaint rule is the artful pleading doctrine, 

which permits federal courts to read into a complaint elements that the plaintiff omitted 

in order to ensure that a plaintiff may not defeat federal subject-matter jurisdiction by 

artfully pleading his complaint as if it arises under state law where the plaintiff's suit is, 

in essence, based on federal law.” Tortora v. City of Shelton Bd. of Fire Comm'rs, No. 3:12–

cv–951 (SRU), 2012 WL 4854694, at *2 (D.Conn. Oct. 11, 2012) (quoting Sullivan v. 

American Airlines, Inc., 424 F.3d 267, 271 (2d Cir. 2005)) (internal quotation marks 

omitted). When it is determined that a plaintiff has properly stated only a state law 

cause of action after an application of the well-pleaded complaint rule and the artful

Case 2:15-cv-00207-C Document 12 Filed 06/23/15 Page 6 of 9
7

pleading doctrine, there generally is no federal jurisdiction. Caterpillar, 482 U.S. at 392. 

In those instances “when both federal and state remedies are available, [a] plaintiff's 

election to proceed exclusively under state law does not give rise to federal 

jurisdiction.” Avitts v. Amoco Prod. Co., 53 F.3d 690, 693 (5th Cir.1995). 

A claim “aris[es] under” federal law if it “necessarily raise[s] a stated federal 

issue, actually disputed and substantial, which a federal forum may entertain without 

disturbing any congressionally approved balance of federal and state judicial 

responsibilities.” Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 314, 

125 S.Ct. 2363, 162 L.Ed.2d 257 (2005). More specifically, “federal jurisdiction over a 

state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, 

(3) substantial, and (4) capable of resolution in the federal court without disrupting the 

federal-state balance approved by Congress.” Gunn v. Minton, 133 S.Ct. 1059, 1065, 185 

L.Ed.2d 72 (2013).

D. Federal Jurisdiction Over a State Law Claim Has Not Been Shown.

1. No federal law issues are “necessarily raised” in the Complaint.

The first of the factors listed in Gunn v. Minton instructs that the Court should 

consider whether plaintiff has “necessarily raised” a federal issue. In Gunn, the 

Supreme Court found that a federal issue was necessarily raised because the application 

of federal patent law would be necessary in order to resolve the claim of legal 

malpractice. (Id.) Unlike the situation in Gunn, a review of the removal petition in this 

action has failed to reveal the identification of a specific federal issue raised by the 

Complaint in this action. Instead, Peterson has simply called attention to language that 

implicates the plaintiff’s “civil rights” and the due process clause of the United States 

Constitution. (Doc. 1, at 2) An attempt to specifically identify the civil right at issue or 

that portion of the due process clause implicated was not made. Under these 

Case 2:15-cv-00207-C Document 12 Filed 06/23/15 Page 7 of 9
8

circumstances it would be speculative to find that it will be necessary to resolve any 

federal issues in order to adjudicate plaintiff’s tort-of-outrage claim. In order to prove a 

tort of outrage, plaintiff must present evidence that: “(1) the actor intended to inflict 

emotional distress, or knew or should have known that emotional distress was likely to 

result from his conduct; (2) the conduct was extreme and outrageous; (3) the 

defendant's actions caused the plaintiff distress; and (4) that the distress was severe. 

Harris v. McDavid, 553 So.2d 567, 569–570 (Ala.1989) (citation omitted). 

Since the defendant has failed to make a sufficient showing that the adjudication 

of the tort of outrage is dependent on the application or interpretation of federal law, a 

federal issue has not been raised in the Complaint. It is clear to the undersigned that 

plaintiff’s pleading is not an example of clarity and has only made passing references to 

plaintiff’s civil rights and the due process clause of the United States Constitution. It is 

fair to infer that his claim does not rise or fall on an interpretation of the Constitution or 

any specific clause. Maul v. City of Selma, 2:13-cv-00354-KD-B, 2013 WL 5840201 (S.D. 

Ala.), report and recommendation adopted (October 30, 2013); see also Pena v. Town of 

Kearny, 2014 WL 1666052 at *2 (D. N.J. April 25, 2014) (“Similarly here, the fact that the 

Complaint could be read to state a § 1983 claim premised upon federal constitutional 

violations is not enough to overcome Plaintiffs obvious intention to bring a state civil 

rights lawsuit; neither is the fact that the CRA references the federal Constitution in its 

private right of action provision.”) (footnote omitted). Peterson’s arguments to the 

contrary are not persuasive – Burton’s claims simply do not necessarily raise a federal 

question

2. Even assuming federal issues exist, they are not “substantial.”

Assuming that plaintiff’s reference to the denial of unspecified civil rights joined 

with the references to due process and the United State Constitution do raise federal 

Case 2:15-cv-00207-C Document 12 Filed 06/23/15 Page 8 of 9
9

issues, jurisdiction is lacking for the additional reason that the issues have not been 

shown to be “substantial.” The defendant, leaving the Court without any basis to 

determine if a decision of the federal issues in this case would somehow impact the 

“federal interests as a whole,” has omitted a discussion of substantiality. Gunn, 133 S.Ct. 

at 1067 (“The substantiality inquiry under Grable looks instead to the importance of the 

issue to the federal system as a whole.”). It would appear from the record that any civil 

rights action that may exist given the actions of plaintiff’s principal would be a civil 

rights action commonly encountered in federal courts where the focus is not on “federal 

interests as a whole” but the rights of the individual plaintiff. Thus, the substantiality 

requirement is clearly missing. 

CONCLUSION

Peterson has not satisfied his burden of proving that subject matter jurisdiction 

exists over the Complaint based on federal question jurisdiction. No federal questions 

appear on the face of the Complaint in that the claims of the plaintiff do not arise under 

the laws of the United States, and his passing reference to his civil rights, due process 

and the United States Constitution are insufficient to confer subject-matter jurisdiction. 

Accordingly, the motion to remand (Doc. 7) is GRANTED and this matter is

REMANDED to the Circuit Court of Marengo County, Alabama.

DONE and ORDERED this the 23rd day of June 2015.

s/WILLIAM E. CASSADY

UNITED STATES MAGISTRATE JUDGE

Case 2:15-cv-00207-C Document 12 Filed 06/23/15 Page 9 of 9