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Evans v. City of Etowah

April 17, 2007

TERESA EVANS, PLAINTIFF,
v.
CITY OF ETOWAH, TENNESSEE, EMPIRE SURETY GROUP, INC., D/B/A "A 24-HR BONDING CO.," CHUCK NELMS, CITY OF ETOWAH POLICE OFFICER, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, BILL CRAWFORD, CITY OF ETOWAH POLICE OFFICER, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, JOHN YESTE, IN HIS INDIVIDUAL CAPACITY AND AS AGENT FOR EMPIRE SURETY GROUP, INC., AND JASON SCHWIND, IN HIS INDIVIDUAL CAPACITY AND AS AGENT FOR EMPIRE SURETY GROUP, INC., DEFENDANTS.



The opinion of the court was delivered by: Chief Judge Curtis L. Collier

MEMORANDUM

Before the Court is a motion to dismiss filed by defendants Empire Surety Group, Inc., d/b/a "A 24 Hr Bonding Co.," John Yeste, and Jason Schwind (collectively, the "Empire Defendants") (Court File No. 10). Plaintiff Teresa Evans ("Plaintiff") untimely responded to the motion on February 25, 2007 (Court File No. 20).*fn1 The Empire Defendants replied on March 5, 2007 (Court File No. 24).*fn2 Plaintiff also filed a "motion for discovery and stay of judgment pending discovery" (Court File No. 14). In essence, Plaintiff attempts to construe the "gravaman" [sic] of the Empire Defendants very apparent motion to dismiss under Fed. R. Civ. P. 12(b)(6) as a motion for summary judgment (id. at 1). The Court finds this motion is without merit and will DENY the motion (Court File No. 14).

For the following reasons, the Court will DENY in part and GRANT in part the motion to dismiss (Court File No. 10). The Court will dismiss Counts Two and Three of the complaint and ORDER Plaintiff to more clearly state her state law claims (Counts Four through Twelve) against the Empire Defendants.

I. FACTS AND PROCEDURAL HISTORY

Plaintiff filed this lawsuit on November 21, 2006 (Court File No. 1). The complaint alleges a deprivation of Plaintiff's constitutional rights under color of law in violation of 42 U.S.C. §§ 1981, 1983, and 1985 (id. ¶ 1). The complaint also alleges deprivations/violations of the Plaintiff's rights as protected by the Tennessee Constitution, the Tennessee Code, and Tennessee common law (id.).

Plaintiff is a resident of Etowah, Tennessee (Court File No. 1 ¶ 11(a)). She is the mother of Brandon Noble ("Noble") (id. ¶ 17).

Defendant City of Etowah ("City"), Tennessee, is a political subdivision of the State of Tennessee organized and existing under State law (id. ¶ 12). The Etowah Public Safety Department (the "Department") is a law enforcement agency created and regulated by Tennessee State law (id. ¶ 13). Defendants Chuck Nelms ("Nelms") and Bill Crawford ("Crawford") are members of the City police force (id. ¶¶ 14-15).

The Empire Defendants include Empire Surety Group, Inc. ("Empire"), a corporation created and registered in Georgia which provides bail bonds services and contracts to secure the appearance of accused principals in court in Cobb County, Georgia (id. ¶ 16). Defendants John Yeste ("Yeste") and Jason Schwind ("Schwind") are Empire employees responsible for apprehending principals who fail to appear pursuant to the bail bond contract (id. ¶ 16(c)).

The following facts are drawn from the complaint and will be accepted as true for purposes of this motion, as required by a Fed. R. Civ. P. 12(b)(6) inquiry. In September 2004, Plaintiff's son, Noble, was charged with criminal offenses in the Superior Court for Cobb County, Georgia. Empire entered into a bail bond/surety contract with Noble. Per the conditions of his release and with court permission, Noble moved in with Plaintiff pending his trial. (Id. ¶¶ 17-19.) Noble was scheduled to appear in Superior Court (Court File No. 10-2); however, Noble failed to appear in court (Court File No. 1, ¶ 20).

The complaint alleges that defendants Nelms, Crawford, Yeste, and Schwind traveled to Plaintiff's home to apprehend Noble, "burst" into the home without a search warrant, knocked Plaintiff down, threw Plaintiff onto a sofa, refused to show Plaintiff a warrant despite her request, waved their firearms in her face, pushed and kicked Plaintiff, arrested Plaintiff, and did not inform Plaintiff of the charges against her for two hours following the arrest (id. ¶¶ 21-35). The complaint also alleges the defendants "set upon" Noble when he came into the room, though the complaint does not state which "individual" defendant actually did what to Noble (id. ¶ 30).*fn3

II. PLAINTIFF'S COMPLAINT

Plaintiff's complaint asserts federal jurisdiction under 42 U.S.C. §§ 1981, 1983, and 1985, alleging deprivations of constitutionally protected rights guaranteed by the First, Fourth, Eighth, and Fourteenth Amendments (Court File No. 1 ¶¶ 1, 50-62). The complaint also alleges violations of the Tennessee Constitution, Code and common law (id. ¶ 1) and invokes the Court's supplemental jurisdiction pursuant to 28 U.S.C. § 1367 (id. ¶ 2). The complaint alleges twelve counts:

(1) violation of civil rights under color of state law pursuant to 42 U.S.C. § 1983,*fn4

(2) violation of equal rights under color of state law pursuant to 42 U.S.C. § 1981,

(3) conspiracy to violate civil rights pursuant to 42 U.S.C. § 1985,

(4) negligence,

(5) negligence ...


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