Guy v. Shabazz

SAMUEL L. GUY, Plaintiff, v. HANIFA SHABAZZ, et al., Defendants.

Civ. Action No. 17-576-GMS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

February 6, 2018

Superior Court of the State of Delaware in and for New Castle County

Case No. 17C-05-103 WCC

MEMORANDUM

I. INTRODUCTION

The plaintiff Samuel L. Guy ("Guy"), an attorney who proceeds pro se, filed this action in the Superior Court of the State of Delaware in and for New Castle County on May 8, 2017, alleging violations of the right to due process and equal protection under the United States Constitution and the Delaware Constitution. (D.I. 1). The defendants Hanifa Shabazz ("Shabazz"), Rysheema Dixon ("Dixon"), Loretta Walsh ("Walsh"), and the Wilmington City Council ("City Council") (collectively "the defendants") filed a notice of removal to this court on May 17, 2017. (Id.) Before the court is Guy's request for default and motion to remand to State Court and the defendants' motion to dismiss. (D.I. 3, 5, 6.)

II. BACKGROUND

Shabazz serves as president of the City Council and Dixon and Walsh are At-Large members of the City Council. (D.I. 1-1 at ¶¶ 1-4.) Walsh also serves as the president pro tempore. (Id. at ¶ 4.) Guy, Dixon, Walsh, and Ciro Adams ("Adams")¹ are recently elected At-Large members of the 107^th Session of the Wilmington, Delaware City Council. (D.I. 1-1 at ¶ 14.) The court takes judicial notice that the newly elected At-Large Council members took office on January 3, 2017. See https://www.wilmingtonde.gov/Home/Components/News/News/293/225 (last visited Jan. 30, 2018). The City of Wilmington (the "City") is a municipality, organized under 22 Del. C. §§ 801, et seq. (Id. at ¶ 5.) Each City Council member is allotted a budget of $10,000 for the fiscal year, and council members must allocate $8,000 of discretionary funds for scholarships. (Id. at Exs. A, C.)

Given that the fiscal year closes on June 30^th (id. at Tab 7-8), the terms of the newly elected At-Large City Council members did not begin at the same time as the fiscal year. Guy alleges that a total of $15,400 was not used by the previous At-Large Council members, and the money was distributed to the newly elected At-Large City Council members in a manner that violated the Equal Protection Clause and the Due Process Clause. (Id. at ¶ 11.) Guy calculates the $15,400 resulted in an average of $3,850 available for distribution to each At-Large Council Member. (Id. at ¶ 12.)

Guy learned on January 24, 2017, that he was not allocated anything for scholarship and discretional funding. (Id. at ¶ 15.) Dixon was allocated $6,500, Walsh was allocated $8,650, and Adams was allocated $250. (Id. at ¶ 16.) Based upon Exhibit B of the complaint, it appears the newly elected At-Large City Council members inherit the discretionary funds of their predecessors and received money based upon whom they replace, in alphabetical order. (Id. at Ex. B.) Walsh was reelected so she retained the funds she had not used, $8,650. Brown, Cabrera, and Wright were the former At-Large City Council members and they were replaced by Adams, Dixon, and Guy. Brown had $250 left in discretionary funds, and it was allocated toAdams; Cabrera had $6,500 left in discretionary funds, and it was allocated to Dixon, and Wright had no money left in discretionary funds, and the zero amount was allocated to Guy. (See id.)

Guy alleges the disparity in the allocations was concealed from him. (Id. at ¶ 22.) Shabazz and the City Council made a public announcement that the money was distributed in alphabetical order. (Id. at ¶ 19.) Guy alleges that the "alphabetical order classification" method for distribution of funds has no relationship to the amount of scholarship and discretionary financial resources distributed to At-Large City Council members. (Id. at ¶ 20.) He alleges that Shabazz "made up an alphabetical order rationale as her explanation to justify how she distributed the scholarship and discretionary funds." (Id. at ¶ 27.) He contends that Shabazz distributed the funds in a manner reflecting her personal preference knowing the funds belong to the citizens of Wilmington, Delaware. (Id. at 28.)

Guy alleges that Shabazz, Dixon, and Walsh intentionally received, retained or disposed of scholarship and discretionary funds (the property of another At-Large City Council member), with the intent to deprive Guy and Adams of the funds, or to appropriate the funds knowing the funds were acquired under circumstances amounting to violations of the Equal Protection Clause and the Due Process Clause. (Id. at ¶ 24.) Guy alleges that Dixon and Walsh had an obligation to return any portion of scholarship and discretionary funds they received in violation of the United States and Delaware Constitutions. (Id. at ¶ 38.) Finally, Guy alleges that Shabazz did not administer the financial resources of the City Council in a manner consistent with the Equal Protection Clause and Due Process Clause and she and the City Council operated in an arbitrary and capricious manner. (Id. at ¶¶ 33, 43.)

Guy seeks a declaratory judgment to find the current manner of allocating scholarship and discretionary funding for At-Large City Council members unconstitutional, and to determine a procedure that affords At-Large City Council members equal protection and due process.

The defendants moves for dismissal pursuant to Fed. R. Civ. P. 12(b)(6) on the grounds that: (1) they are shielded from suit by reason of legislative immunity; and (2) Guy cannot state claims for violation of his due process and equal protection rights. (D.I. 3, 4.) Guy opposes the motion to dismiss and seeks leave to amend in lieu of dismissal. (D.I. 9.) On the same day the defendants filed their motion to dismiss, Guy filed a request for default and a motion to remand this matter to State Court. (D.I. 5, 6.)

III. REQUEST FOR DEFAULT

Guy moves for entry of default on the grounds that the defendants have not answered the complaint, failed to appear, or otherwise defend within the time allowed. (D.I. 5.) The defendants oppose noting that they have never been served and, further, they timely filed a motion to dismiss. (D.I. 7.)

An entry of default must be entered due to the default of a party that has not answered the pleading or "otherwise defend[ed]," within the time required by the rules or as extended by court order. Fed. R. Civ. P. 55(a). Timely serving and filing a motion to dismiss under Fed. R. Civ. P. 12(b), precludes entry of default. See Francis v. Joint Force Headquarters Nat'l Guard, 2006 WL 2711459, (D.N.J. Sept.19, 2006), aff'd in part, 247 F. App'x 387 (3d Cir. 2007) (unpublished).

The defendants appeared and filed a motion to dismiss the complaint. Entry of default is not proper and, therefore, the court will deny Guy's motion. (D.I. 5.)

IV. MOTION TO REMAND

Guy moves to remand this matter to State Court. (D.I. 6.) Guy does not dispute that the federal due process and equal protection claims are removable to this court. However, he contends that his due process and equal protection claims under the Delaware Constitution allow the court to exercise its discretion and remand all matters in which State law predominates under 28 U.S.C. § 1441(c).² The defendants oppose, noting that removal was proper, and argue that Guy cites the wrong standard and requests relief unavailable to him. (D.I. 8.)

Section 1441(c) no longer contains the language cited by Guy, this portion of the statute having been amended, effective December 7, 2011. As Guy concedes, the complaint clearly alleges constitutional claims that invoke federal question jurisdiction, but argues that the rest of the case "is otherwise not removable." The removal statutes, § 1447(c) and § 1441 (c)(2) mandate that in an action where a district court has federal question jurisdiction over certain claims, but lacks either original jurisdiction or supplemental jurisdiction over other claims, the court shall sever the latter claims and remand them to state court. Id. Supplemental jurisdiction over state law claims will be found where they derive from a common nucleus of operative facts as the federal claims such that they would ordinarily be expected to be adjudicated in one proceeding. See City of Chicago v. International Coll of Surgeons, 522 U.S. 156, 164-65 (1997). See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 349 (1988). See also 28 U.S.C. § 1367 ("in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims inthe action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution").

Because Guy's Delaware constitutional law claims are premised on the same operative facts as his federal due process and equal protection claims, the court properly has supplemental jurisdiction over the state law claims. Remanding the claims to state court is not warranted. See e.g., Borough of West Mifflin v. Lancaster, 45 F.3d 780, 786 (3d Cir. 1995). Therefore, the court will deny the motion to remand. (D.I. 6.)

V. MOTION TO DISMISS

A. Legal Standards

In reviewing a motion filed under Fed. R. Civ. P. 12(b)(6), the court must accept all factual allegations in a complaint as true and take them in the light most favorable to plaintiff. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). A court may consider the pleadings, public record, orders, exhibits attached to the complaint, and documents incorporated into the complaint by reference. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). A Rule 12(b)(6) motion maybe granted only if, accepting the well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the complainant, a court concludes that those allegations "could not raise a claim of entitlement to relief." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 558 (2007).

"Though 'detailed factual...