Case Document 14-1 Filed 03/03/16 Page 1 of 7 PageID 47 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY, LOUISVILLE DIVISION JOHN DAVID BOGGS MEMORANDUM IN SUPPORT OF Plaintiff, MOTION TO DISMISS vs. Case No. WILLIAM H. MERIDETH Defendant. Defendant, by counsel, herein submits this Memorandum in Support of his Motion to Dismiss this action for lack of subject matter jurisdiction. INTRODUCTION The Plaintiff ?led the present complaint with two counts. One count, the gravamen of the Complaint, is a simple state law small claims court case for trespass to chattel, valued in the Complaint at $1,500.00 in damage. Complaint 1129. The Complaint alleges that both parties are residents of Kentucky. Complaint 1 and 2. Factually, the Plaintiff alleges that on July 25, 2016, the Defendant shot the Plaintiff?s remote control drone while it was hovering over the Defendant?s property. Complaint 11 11. The Plaintiff has already attempted to enforce state law criminal proceedings against the Defendant for this shooting, having him charged in Bullitt County with felony wanton endangerment and criminal mischief. After taking substantial Case Document 14-1 Filed 03/03/16 Page 2 of 7 PageID 48 testimony at a preliminary hearing, those charges were dismissed by the state court. Complaint 11 12. In response, the Plaintiff has ?led this civil action and has appended to his state law small claims court count for trespass to chattel a count asking this court for a declaratory judgment. The Plaintiff asks this court to declare, that as a matter of federal law, the defenses Defendant might raise to the Plaintiff?s trespass to chattel claim are not valid in essence, he wants the court to declare that he wins his state law claim. Complaint 1125. LEGAL STANDARD A. Federal Courts are Courts of Limited Jurisdiction Subj ect matter jurisdiction is proper in federal court under either diversity jurisdiction, 28 U.S.C. 1332 or federal questionjurisdiction 28 U.S.C. ?l331. Diversity jurisdiction requires that the amount in controversy exceed seventy ?ve thousand dollars and be between "citizens of different states." 28 U.S.C. 1332(a)(l). This standard demands complete diversity: no defendant shall be the citizen of the same state as any plaintiff. Strawbridge v. Curtiss, 7 US. 267, 3 Cranch 267, 2 435 (1806). Secura Ins. Co. v. Gray Comm, Inc, 661 F. Supp. 2d 721, 724?25 (W.D. Ky. 2009) Under 28 U.S.C. 1331, [t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, law or treaties of the United States." A claim falls within the court's original jurisdiction "only in those cases in which a well-pleaded Complaint establishes either that federal law creates the cause of action or that the plaintiff?s right to relief necessarily depends on resolution of a substantial question of federal law. Eastman v. Marine Mech. Corp, 438 F.3d 544, 550 (6th Cir. 2006). Case Document 14-1 Filed 03/03/16 Page 3 of 7 PageID 49 B. Declaratory Judgement Claim Cannot be Source of Subject Matter Jurisdiction ?The Declaratory Judgment Act only extends the jurisdiction of a federal court; subject matter jurisdiction must ?rst be proper under 28 U.S.C. 1331, Federal Question, or 1332, Diversity of Citizenship.? Secura Ins. Co. v. Gray Constr, Inc., 661 F. Supp. 2d 721, 725 (W.D. Ky. 2009). See also, Skelly Oil v. Phillips Petroleum Co., 339 U.S. 667, 671, 70 S. Ct. 876, 94 L. Ed. 1194 (1950), United Pac. Ins. Co. v. Mont, Dep?t ongric., 658 F. Supp. 335, 337 (D. Mont. 1986). C. The Court is Not Required to Accept Jurisdiction over a Declaratory Judgement Recently, this court had the opportunity to review the Declaratory Judgement Act, 28 U.S.C. 2201. In the case of Argonaut?Midwest Ins. Co. v. Johnson, No. 2014 U.S. Dist. LEXIS 168219, at *3-4 (W.D. Ky. Dec. 2, 2014), this court stated: The Declaratory Judgment Act states a federal court "may declare the rights and other legal relations of any interested party seeking such declaration." 28 U.S.C. ?2201(a). The Act is an enabling act that "confers a discretion on the courts" to act "rather than an absolute right upon the litigan Wilton v. Seven Falls Co. 515 U.S. 277, 287, 115 S. Ct. 2137, 132 L. Ed. 2d 214 (1995) (quoting Public Serv. Comm ?n of Utah v. Wyco?Co., 344 U.S. 237, 241, 73 S. Ct. 236, 97 L. Ed. 291 (1952)). In other words, the Act authorizes district courts to exercise jurisdiction, but does not impose a duty to do so. Bituminous Cas. Corp. v. Lumber Co, Inc., 373 F.3d 807, 812 (6th Cir. 2004); Allstate Ins. Co. v. Mercier, 913 F.2d 273, 276 (6th Cir. 1990) (abrogated on other grounds by Wilton v. Seven Falls Co, 515 U.S. 277, 115 S. Ct. 2137, 132 L. Ed. 2d 214 (1995)). A district court may not decline jurisdiction, however, as a matter of whim or personal disinclination. Mercier, 913 F.2d at 277. In determining whether the exercise of jurisdiction is proper, the Court must consider ?ve factors: 3 Case Document 14-1 Filed 03/03/16 Page 4 of 7 PageID 50 (1) whether the declaratory action would settle the controversy; (2) whether the declaratory action would serve a useful purpose in clarifying the legal relations in issue; (3) whether the declaratory remedy is being used merely for the purpose of 'procedural fencing' or 'to provide an arena for a race for res judicata;? (4) Whether the use of a declaratory action would increase friction between our federal and state courts and improperly encroach upon state jurisdiction; and (5) whether there is an alternative remedy which is better or more effective. Grand Trunk W. R. R. Co. v. Consol. Rail C0., 746 F.2d 323, 326 (6th Cir. 1984). In the determination of factor number four, three additional factors are considered: (1) whether the underlying factual issues are important to an informed resolution of the case; (2) whether the state trial court is in a better position to evaluate those factual issues than is the federal court; and (3) whether there is a close nexus between the underlying factual and legal issues and state law and/or public policy, or whether federal common law or statutory law dictates a resolution of the declaratory judgment action. Scottsdale Ins. Co. v. Roumph, 211 F.3d 964, 968 (6th Cir. 2000). DISCUSSION A. There is no Subject Matter Jurisdiction and Dismissal is Required The Complaint alleges only two counts one for a declaratory judgment and one for trespass to chattels. Since the declaratory judgment count cannot confer subject matter jurisdiction and must be ignored, the only count remaining for subject matter jurisdiction is for trespass to chattels. That claim is not among diverse parties, is not for an amount greater than $75,000 and does not involve any federal law. Consequently, this court lacks subject matter jurisdiction and must dismiss the complaint. B. The Court Should Not Exercise Jurisdiction over the Declaratory Judgement Even if subject matter jurisdiction were proper, the factors listed above nevertheless lead to the conclusion that the court should not exercise jurisdiction for this declaratory judgment. 4 Case Document 14-1 Filed 03/03/16 Page 5 of 7 PageID 51 First, looking at factors one and two, the declaratory action would not settle the controversy between the parties nor serve a useful purpose in clarifying the legal relations at issue. Even if this court were to declare that the Plaintiffs drone were somehow within exclusively federally controlled airspace, that would not necessarily preclude Kentucky statutory law related to the protection of a person?s property from also applying especially where, as here, the federal law is silent. Further, since the actions complained of herein, the FAA has promulgated new rules governing the use of drones. As such, a declaration in this case will not clarify the legal relations of the parties going forward under the current regulations. See Registration and Marking Requirements for Small Unmanned Aircraft, Rule by the Federal Aviation Administration on 12/16/2015, 1750/registration?and- Second, the Complaint makes clear that the declaratory remedy is being used for procedural purposes. The actual gravamen of the Complaint is that the Defendant allegedly damaged the Plaintiffs drone. The Plaintiff, in response to the criminal charges being dismissed against the Defendant, is using the declaratory remedy to attempt to create subject matter jurisdiction the proverbial mountain out of a molehill. A careful reading of the Complaint reveals the argument to be as follows: The Defendant damaged the Plaintiff?s drone. The Plaintiff anticipates that the Defendant will try and argue that he was justify in shooting the drone pursuant to Kentucky state trespass laws and KRS 503.080. To prevent the Defendant from raising that defense, the Plaintiff wants this court to circumvent the argument and declare that there is no state law trespass. This is an improper use of 28 U.S.C. 2201. In reality, this is a Bullitt County small claims court case. Case Document 14-1 Filed 03/03/16 Page 6 of 7 PageID 52 Third, the declaratory judgment would increase friction between the federal and state courts. When evaluating this factor number four, the courts have included three additional factors to consider (1) whether the underlying factual issues are important to an informed resolution of the case; (2) whether the state trial court is in a better position to evaluate those factual issues than is the federal court; and (3) whether there is a close nexus between the underlying factual and legal issues and state law and/or public policy, or whether federal common law or statutory law dictates a resolution of the declaratory judgment action. Here, all of these sub-factors highlight that action by the federal court would increase friction. The underlying factual issues will be critical where was the drone ?ying, how high, over what land, who was being videotaped, was the drone even actually shot or did he just crash? The state court already took evidence in this matter and dismissed the criminal charges. The state court is in a better position to evaluate the facts as all of the witnesses are in Bullitt County, including the law enforcement of?cers on the scene. Finally, the Plaintiff has another remedy in state court a claim for trespass to chattels. For these reasons, even if there were subject matter jurisdiction for the declaratory action, this court should nevertheless exercise its discretion and refuse to accept the case. Consequently, the Complaint should be dismissed. CONCLUSION This case presents a small claims court case packaged with a tenuous at best declaratory judgment action in order to invoke federal court jurisdiction. Subject matter jurisdiction is lacking and this matter should be dismissed. RESPECTFULLY SUBMITTED this 3rd day of March, 2016. 6 Case Document 14-1 Filed 03/03/16 Page 7 of 7 PageID 53 MCCOY HIESTAND, PLC By: s/D. Chad McCoy D. Chad McCoy 114 South 3rd Street Bardstown, Kentucky 40004 cmccoy@mccovandheistand.com (502) 233-83 85 Counsel for Defendant CERTIFICATE OF SERVICE On March 3, 2016, I electronically ?led this document through the ECF system, which will send a notice of electronic ?ling to: Thomas C. Gleason FROST BROWN TODD, LLC 400 West market Street, 32nd Floor Louisville, Kentucky 40202 James E. Mackler William L. Campbell, Jr. FROST BROWN TODD, LLC 150 3rd Ave. 3., Suite 1900 Nashville, Tennessee 37201 I further mailed a true and accurate copy of this document and the notice of electronic ?ling to the addresses listed above. By: s/D. Chad McCo D. Chad McCoy 114 South 3rd Street Bardstown, Kentucky 40004 cmccoy@mccoyandhiestand.com (502) 233-8385 Counsel for Defendant