CHRISTIE ARRINGTON, Administrator of the Estate of Nyles Arrington v. City of Raleigh

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1207
CHRISTIE ARRINGTON, Administrator of the Estate of Nyles
Arrington; CHRISTIE ARRINGTON, Individually,
Plaintiffs - Appellees,
v.
CITY OF RALEIGH; MICHELLE PEELE, individually, in her
official capacity as an officer of the Raleigh Police
Department, and in her capacity as a security guard with La
Rosa Linda’s Mexican Restaurant,
Defendants – Appellants,
and
RALEIGH POLICE DEPARTMENT; ROSALINDA MARTINEZ,
Defendants.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:07-cv-00011-BO)
Argued: January 28, 2010 Decided: March 5, 2010
Before WILKINSON, NIEMEYER, and DAVIS, Circuit Judges.
Vacated and remanded with instructions by unpublished per curiam
opinion.

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ARGUED: Norwood P. Blanchard, III, CRANFILL, SUMNER & HARTZOG
LLP, Wilmington, North Carolina; Hunt Kang Choi, OFFICE OF THE
CITY ATTORNEY, Raleigh, North Carolina, for Appellants. Mark
Anthony Key, Lillington, North Carolina, for Appellees. ON
BRIEF: Dorothy K. Leapley, OFFICE OF THE CITY ATTORNEY, Raleigh,
North Carolina, for Appellant City of Raleigh; Patricia L.
Holland, CRANFILL, SUMNER & HARTZOG LLP, Raleigh, North
Carolina, for Appellant Michelle Peele.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
This case arises from the fatal shooting of a man by a
Raleigh, N.C., police officer. Plaintiff Christie Arrington,
acting in her individual capacity and as administrator of the
estate of Nyles Arrington, filed a complaint seeking damages in
North Carolina state court, asserting claims under both 42
U.S.C. § 1983 and state law. Defendants removed the case to the
United States District Court for the Eastern District of North
Carolina on the basis of federal question jurisdiction; all of
the parties are citizens of North Carolina. Thirteen days after
the removal of the case to federal court, the plaintiff amended
her complaint as of right, dismissing all the federal claims.
The plaintiff never sought remand to state court; consequently,
the case proceeded in federal district court. The case has come
to us upon an interlocutory appeal on complex issues of immunity
under North Carolina law. Having had the benefit of full
briefing and oral argument, we conclude that the district court
should have remanded the case to state court upon the dismissal
of all federal claims, even in the absence of a motion from the
parties that it do so. Accordingly, we vacate the interlocutory
order brought up for review and remand this action with
directions that the district court remand the case to state
court for all further proceedings.

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I.
We draw the below summary of the facts from the record
before the district court. On August 28, 2005, Officer Michelle
Peele (“Peele”) fatally shot Nyles Arrington (“Arrington”) as he
was attempting to steal her personally-owned vehicle from the
parking lot of La Rosa Linda’s, a Raleigh restaurant and bar.
At the time of the shooting, Officer Peele was a sworn police
officer of the Raleigh Police Department (“RPD”) working as an
off-duty security guard at La Rosa Linda’s. The City of Raleigh
(“the City”) had passed an ordinance requiring nightclubs to
hire off-duty uniformed officers to provide security. When RPD
officers worked off-duty security jobs at local establishments,
they were required to wear their RPD uniforms and carry their
service weapons.
On the night of the shooting, Officer Peele was
scheduled to work a four-hour shift providing security at La
Rosa Linda’s from 10 p.m. to 2 a.m. Officer Peele’s friend,
Lindsay Banning (“Banning”), accompanied Officer Peele that
night, riding with her in Peele’s personal automobile (an SUV)
to the restaurant. As the night progressed, Officer Peele
occasionally sat, with Banning, in her vehicle, which was
positioned in the parking lot so that Peele could watch the
front entrance of the restaurant. Around midnight, Officer Peele
went into the foyer area of La Rosa Linda’s and Banning followed

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her, leaving the SUV in the parking lot with the windows down
and the keys in the ignition.
Shortly after entering the restaurant, Officer Peele
looked outside and noticed a man (subsequently identified as
Arrington) slowly walking past the driver’s side door, opening
the door of her vehicle, and climbing into the driver’s seat.
Officer Peele had never seen Arrington before. She testified
during discovery that she was particularly concerned about the
theft of her vehicle because she had left her personal handgun
on the floor of the driver’s side of the SUV under the front
seat. Officer Peele stepped out of the restaurant and approached
the vehicle, shouting “Stop . . . Police . . . Get out!” but
Arrington did not step out of the vehicle. Instead, he revved
the engine and began driving the car slowly forward. Officer
Peele continued calling for him to stop and drew her service
weapon. As the vehicle moved forward, Arrington made a hard
right. Banning, who had followed Officer Peele outside, was now
either in or close to the path of the moving vehicle. The
parties vigorously dispute Banning’s precise location. Officer
Peele discharged her weapon one time, fatally striking Arrington
in the chest.
Plaintiff Christie Arrington filed this action in Wake
County Superior Court on September 11, 2006, against the City;
Officer Peele, individually and in her official capacity; the

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RPD; and Rosalinda Martinez, the owner of the restaurant. The
six-count complaint included five state law counts and one
federal law count (containing numerous legal theories) pursuant
to 42 U.S.C. § 1983. On January 9, 2007, the defendants timely
removed the case based on federal question removal jurisdiction
to the United States District Court for the Eastern District of
North Carolina. Thirteen days later, the plaintiff filed an
amended complaint, as of right, dismissing her federal claims
and adding an additional state law claim for punitive damages.
The plaintiff never sought remand to state court, and,
exercising supplemental jurisdiction pursuant to 28 U.S.C.
§ 1367(a), the district court proceeded with the case.
At the time of the shooting, the Raleigh City Council
had authorized a limited waiver of the City’s sovereign immunity
for specified types of damages up to $1 million, provided the
claimant agreed to execute a release in favor of all persons,
firms, and corporations that might also or otherwise be liable.
The City also had in place two insurance polices: one issued by
Genesis Insurance Company providing indemnity for certain claims
above $1 million and below $2 million, and another issued by The
Insurance Company of the State of Pennsylvania, providing
indemnity for certain claims above $2 million and below $11
million. The plaintiff refused to agree to execute the release
as provided under state and local law.

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After several preliminary matters had been resolved by
the district court, on July 14, 2008, the City and Officer Peele
filed motions for summary judgment, inter alia, on the ground of
immunity from suit based on certain principles of state law.
After a hearing, the district court entered its memorandum and
order granting summary judgment in favor of the City on the
merits of some claims but it rejected, either as a matter of
law, or on the basis of the existence of genuine disputes of
material fact, both the City’s motion and Officer Peele’s motion
insofar as they asserted immunity from suit. The City and
Officer Peele have timely noted the instant interlocutory
appeal, seeking review of the district court’s immunity rulings.
Under Bailey v. Kennedy, 349 F.3d 731, 738-39 (4th Cir. 2003),
and Gray-Hopkins v. Prince George’s County, 309 F.3d 224, 231
(4th Cir. 2002), we have jurisdiction over this interlocutory
appeal based on the denial of state law immunity.
II.
The plaintiff voluntarily dismissed her federal claims
a mere thirteen days after the case was removed from state court
but she did not move for remand. Thus, the district court
elected to retain jurisdiction over the state law claims being

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pursued by plaintiff.1
Section 1367(c) provides:
No doubt, as permitted by 28 U.S.C.
§ 1367(c), the district court had the discretion to make that
election. But both the plain text of § 1367(c) as well as our
precedents make clear that in this instance, that discretion
should have been exercised to decline jurisdiction.
The district courts may decline to exercise
supplemental jurisdiction over a claim under
subsection (a) 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.
28 U.S.C. § 1367(c). As can be seen, under subsections (c)(1),
(2), and (3), above, there were compelling reasons not to retain
supplemental jurisdiction over the non-diverse state law claims
in this case. As contemplated by subsection (1), the state law
immunity issues here are both novel and complex.2
1 District courts have supplemental jurisdiction over state
law claims that “form part of the same case or controversy” as
the federal claim supporting removal. 28 U.S.C. § 1367(a).
As contemplated
2 The briefing and argument in this case have shown that
issues surrounding municipal sovereign immunity and public
official immunity pose intricate and important state law issues
under North Carolina law. A decision or ruling in this case
could well bring waves of consequences to other North Carolina
municipalities and governmental entities. The district court, in
(Continued)

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by subsection (2), virtually from the start, there has existed
solely state law claims in this case. And relatedly, as
contemplated by subsection (3), the sole federal claim
supporting the district court’s original jurisdiction was
dismissed voluntarily by the plaintiff without objection by
defendants less than two weeks after the case arrived in federal
court. Under the circumstances, therefore, we fail to see why a
federal district court would elect to retain jurisdiction.
Indeed, our precedents evince a strong preference that
state law issues be left to state courts in the absence of
diversity or federal question jurisdiction under circumstances
finding that the City had waived sovereign immunity through its
purchase of two insurance policies seemingly never considered,
and — at a minimum – did not discuss in its order, pertinent
North Carolina cases speaking directly to the issue. See, e.g.,
Magana v. Charlotte-Mecklenburg Bd. of Ed., 183 N.C. App. 146
(2007); Williams v. Holsclaw, 128 N.C. App. 205 aff’d, 349 N.C.
225 (1998); Overcash v. Statesville Bd. of Ed., 83 N.C. App. 21
(1986). Furthermore, while the district court concluded that the
City waived sovereign immunity through the mere purchase of
liability insurance, some North Carolina courts have
consistently rejected that notion. See, e.g., Kephard by
Tutweiler v. Pendergraph, 131 N.C. App. 559 (1998). Similarly,
North Carolina’s doctrine of public officer immunity includes
variants that heighten its complexity. See Jones v. Kearns, 120
N.C. App. 301, 305 (1995); Slade v. Vernon, 110 N.C. App. 422,
428 (1993). Certainly, we do not suggest, by emphasizing such
complexities in state law, that we harbor doubt as to the
ability of any district court in this circuit to resolve them in
a proper case. We have grave doubt, however, that this is a
“proper case” in which a federal district court should undertake
the task.

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such as those reflected here. That is to say, although we have
consistently acknowledged that district courts “enjoy wide
latitude in determining whether or not to retain jurisdiction
over state claims when all federal claims have been
extinguished,” Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir.
1995), at the same time, we have taken heed of the Supreme
Court’s teaching (even before the enactment of § 1367 in 1990)
that “a federal court should consider and weigh in each case,
and at every stage of the litigation, the values of judicial
economy, convenience, fairness, and comity in order to decide
whether to exercise jurisdiction over a case brought in that
court involving pendent state-law claims.” Carnegie-Mellon
University v. Cohill, 484 U.S. 343, 350 (1988) (emphasis added).
Thus, we have observed under circumstances analogous to those
here: “With all its federal questions gone, there may be the
authority to keep [this case] in federal court under 28 U.S.C.
§§ 1367(a) and 1441(c) (2000), but there is no good reason to do
so.” Waybright v. Frederick County, MD, 528 F.3d 199, 209 (4th
Cir. 2008), cert. denied, 129 S.Ct. 725 (2008) (alteration
added); see also Farlow v. Wachovia Bank of North Carolina,
N.A., 259 F.3d 309, 316 (4th Cir. 2001). We think that is
equally true here.

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III.
In sum, we are persuaded that, under the circumstances
here, and for the reasons set forth above, resolution of the
important and potentially far-reaching issues of state law
presented by this case should be remitted to state courts.
Accordingly, the district court should not have maintained
jurisdiction over this action upon the early dismissal by the
plaintiff of the federal claims. Therefore, the order of the
district court entered on January 26, 2009, granting in part and
denying in part motions for summary judgment is vacated. This
case is remanded to the district court with directions to remand
the case to the Superior Court for Wake County, North Carolina.
Upon the remand to state court, the state court shall be free to
adopt, modify, or reject any and all such orders as may have
been previously entered in this action.
VACATED AND REMANDED
WITH INSTRUCTIONS

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