United States District Court, E.D. Tennessee
THE ESTATE OF AMOS MATTHEW FRERICHS, by Beverly Dunn as the Personal Representative of the Estate of Amos Matthew Frerichs, Plaintiff,
KNOX COUNTY, TENNESSEE, et al., Defendants.
A. VARLAN CHIEF UNITED STATES DISTRICT JUDGE
civil matter is before the Court on several motions: (1)
plaintiff's Motion for Scheduling Conference to
Expedite Declaratory Judgment and Motion to Stay Other
Proceedings Pending Issuance of Declaratory Judgment [Doc.
6], (2) plaintiff's Motion for This Court to Certify
Under 28 U.S.C. § 2403 [Doc. 7], (3) defendant Evan
Rogers's Motion to Dismiss for Lack of Subject Matter
Jurisdiction, Standing, and Failure to State a Claim [Doc.
12], (4) defendant Knox County's Motion to Dismiss [Doc.
13], (5) the State of Tennessee's Motion to Dismiss [Doc.
17], and (6) defendant's Supplemental Motion to Dismiss
[Doc. 23]. The parties have filed several responses and
replies to the pending motions [Docs. 21-22, 24-26].
reasons that follow, the Court will: (1) deny as moot
plaintiff's Motion for Scheduling Conference to Expedite
Declaratory Judgment and Motion to Stay Other Proceedings
Pending Issuance of Declaratory Judgment [Doc. 6], (2) deny
as moot plaintiffs Motion for This Court to Certify Under 28
U.S.C. § 2403 [Doc. 7], (3) grant defendant Evan
Rogers's Motion to Dismiss for Lack of Subject Matter
Jurisdiction, Standing, and Failure to State a Claim [Doc.
12], (4) grant defendant Knox County's Motion to Dismiss
[Doc. 13], (5) grant the State of Tennessee's Motion to
Dismiss [Doc. 17], and (6) deny as moot defendant's
Supplemental Motion to Dismiss [Doc. 23].
action arises from events occurring on December 18, 2015,
ultimately resulting in the death of Amos Matthew Frerichs
(“Frerichs”), whose estate brings this action.
Frerichs was shot and killed in the parking lot of Academy
Sports following an altercation with defendant Evan Rogers
(“Rogers”) and Rogers's partner, Geziel
DosSantos (“DosSantos”) [Doc. 1
Sheriff J.J. Jones (“Jones”) created a Knox
County Sheriffs Office Holiday Task Force to operate during
the holiday season for the past several years [Id.
¶ 36]. Plaintiff asserts that Jones negligently
hires and trains officers, including deputy sheriffs and
reserve officers, to investigate and arrest alleged
shoplifters while dressed in plain clothes as a means of
policing shoplifting during the holiday season [Id.
to plaintiff, Rogers and DosSantos served on the Holiday Task
Force and were in plain clothes on December 18, 2015 [Id.
¶ 38]. On that day, Rogers and DosSantos received a
phone call from a loss prevention employee at Academy Sports
who told them to arrest Frerichs [Id. ¶ 40].
The officers waited outside of the store and confronted him
[Id. . ¶ 41].
began to run into the parking lot and the officers chased him
[Id. ¶ 44]. Rogers drew his gun as he ran and
pointed it at Frerichs [Id. ¶ 45]. Frerichs
then got into his vehicle and began to operate it [Id.
¶ 47]. The officers reached the car only a few
seconds afterwards, and they began physically striking
Frerichs [Id. ¶¶ 48-49]. Rogers employed
his taser on Frerichs, and then struck him in the face with
the butt of the taser [Id. ¶¶ 51-52].
Rogers then dropped his taser and instructed DosSantos to
tase Frerichs, which DosSantos did [Id. .
complaint further alleges that as DosSantos's taser was
cycling, delivering an electric current through
Frerichs's body, Frerichs drove the car in reverse
[Id. ¶ 56]. The officers were pulled backwards
by the driver-side door and fell to the left of the car
[Id. ¶ 57]. Frerichs stopped reversing and
attempted to drive away [Id. ¶ 59]. Rogers then
stood back up, repositioned himself toward the front of the
car, and fired six shots into the driver-side window, killing
Frerichs [Id. ¶¶ 60-62]. Plaintiff asserts
that Rogers fired the six shots in the direction of Academy
Sports, and there were approximately 100 people inside of the
store [Id. ¶ 64].
provides that Rogers himself admitted that he fired the shots
because “his training kicked in” [Id.
¶¶ 84-85]. Plaintiff contends that had Knox County
and Jones properly trained Rogers in the use of force,
Frerichs would still be alive [Id. ¶ 71]. As
provided in the complaint, DosSantos did not fire his weapon
because of the risk of hitting others [Id.
¶¶ 73-74]. Plaintiff asserts that Knox County and
Jones took no reprimanding actions against Rogers
[Id. ¶ 76].
December 14, 2016, Beverly Dunn (“Dunn”),
Frerichs's mother, was appointed the administrator ad
litem of the Estate [Doc. 5]. Dunn and Frerichs's
biological father, Elton Frerichs, Jr. (“Frerichs,
Jr.”), are the sole heirs to the Estate, the only asset
of which is this wrongful death action [Doc. 5-1 p. 1].
result of the alleged actions giving rise to Frerich's
death, Dunn brings suit in her capacity of administrator on
behalf of Frerichs's estate (“the Estate”)
against Rogers, Knox County, and Jones [Doc. 1
¶¶ 7-9]. In the complaint, she seeks
relief in the form of a declaratory judgment and damages.
declaratory judgment, Count One of the complaint seeks a
declaration that the fee-shifting provisions in Tenn. Code
Ann. § 29-20-113 are unconstitutional [Id.
¶¶ 17- 34]. Section 29-20-113 provides:
if a claim is filed with a Tennessee or federal court . . .
against an employee of . . . a governmental entity of the
state in the person's individual capacity, and the claim
arises from actions or omissions of the employee acting in an
official capacity or under color of law, and that employee
prevails in the proceeding as provided in this section, then
the court or other judicial body on motion shall award
reasonable attorneys' fees and costs incurred by the
employee in defending the claim filed against the employee.
Tenn. Code Ann. § 29-20-113(a). Plaintiff alleges that
this statute violates the Supremacy Clause and the Equal
Protection Clause of the United States Constitution [Doc. 1
¶¶ 14- 15, 17-34]. Plaintiff further
contends that she cannot make an informed decision as to
whether she should bring this action against Rogers
individually for federal and state law claims until and
unless the constitutionality of § 29-20-113 is settled
[Id. ¶ 12]. All three defendants are parties to
the declaratory judgment claim [Id. ¶ 16].
damages, plaintiff brings claims pursuant to 18 U.S.C
§§ 1983 and 1988 for violations of Frerichs's
Fourth and Fourteenth Amendment rights against Knox County,
Rogers in his official capacity, and Jones in his official
capacity. Plaintiff also brings such claims against Rogers in
his individual capacity, but states that the individual
capacity claims are conditioned upon the Court determining
that § 29-20-113 is unconstitutional [Id.
¶ 138]. Plaintiff further requests in the complaint that
the Court “stay proceedings in this action until the
Court issues declarations as to the constitutionality of
Tenn. Code Ann. § 29-20-113” [Id. ¶
139]. Plaintiff also brings various state law claims against
State of Tennessee (“Tennessee”) filed a motion
to intervene to defend the constitutionality of §
29-20-113 [Doc. 14], which Magistrate Judge C. Clifford
Shirley, Jr. granted [Doc. 16]. Now pending before the Court
are several motions to dismiss [Docs. 12-13, 17, 23].
Defendants and Tennessee move to dismiss plaintiffs claims
under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
The Court will first address the arguments pursuant to Rule
12(b)(1), and then the Court will turn to the Rule 12(b)(6)
Analysis Under Rule 12(b)(1)
Count One of her complaint, plaintiff seeks a judgment from
the Court declaring that the fee-shifting statute, Tenn. Code
Ann. § 29-20-113, is unconstitutional. Defendants and
Tennessee assert that dismissal of this claim under Rule
12(b)(1) is appropriate, as the Court lacks subject matter
jurisdiction over the claim because plaintiff has no standing
to bring the claim, the claim is moot, and the claim is not
ripe for review. The Court will begin its analysis of this
argument by addressing the appropriate standard of review.
Standard of Review
courts are courts of limited jurisdiction, ” possessing
“only that power authorized by Constitution and
statute.” Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994). Therefore, subject matter
jurisdiction is a threshold issue, which the Court must
consider prior to reaching the merits of a case. Steel
Co. v. Citizens for a Better Env't, 523 U.S. 83,
94-95 (1998); see Fed. R. Civ. P. 12(h)(3) (stating
that “[i]f the court determines at any time that it
lacks subject-matter jurisdiction, the court must dismiss the
action”). Unlike a motion to dismiss on the merits
under Rule 12(b)(6), “where subject matter jurisdiction
is challenged under Rule 12(b)(1)[, ] . . . the plaintiff has
the burden of proving jurisdiction in order to survive the
motion.” RMI Titanium Co. v. Westinghouse Elec.
Corp., 78 F.3d 1125, 1134 (6th Cir. 1996) (quoting
Rogers v. Stratton Indus., Inc., 798 F.2d 913, 915
(6th Cir. 1986)).
to dismiss for lack of subject matter jurisdiction fall into
two general categories: facial attacks and factual
attacks.” United States v. Ritchie, 15 F.3d
592, 598 (6th Cir. 1994). “A facial attack is
a challenge to the sufficiency of the pleading itself.”
Id. In considering whether jurisdiction has been
established on the face of the pleading, “the court
must take the material allegations of the petition as true
and construed in the light most favorable to the nonmoving
party.” Id. (citing Scheuer v.
Rhodes, 416 U.S. 232, 235-37 (1974)).
factual attack, on the other hand, is not a
challenge to the sufficiency of the pleading's
allegations, but a challenge to the factual existence of
subject matter jurisdiction.” Id. In
considering whether jurisdiction has been proved as a matter
of fact, “a trial court has wide discretion to allow
affidavits, documents, and even a limited evidentiary hearing
to resolve disputed jurisdictional facts.” Ohio
Nat'l Life Ins. Co. v. United States, 922 F.2d 320,
325 (6th Cir. 1990). In evaluating a factual attack,
“no presumptive truthfulness applies to the factual
allegations, and the court is free to weigh the evidence and
satisfy itself as to the existence of its power to hear the
case.” Ritchie, 15 F.3d at 598 (internal
rather than attacking plaintiff's pleadings, defendants
and Tennessee argue that this Court lacks subject matter
jurisdiction over plaintiff's declaratory judgment claims
because they are not ripe, are moot, and plaintiff lacks
standing to bring them. To support these arguments,
defendants Tennessee point to, among other things,
defendants' representations that they do not intend to
seek attorneys' fees against plaintiff, and that to do so
would be fruitless because the Estate is insolvent. Thus, the
Court finds that the jurisdictional challenge is a factual
attack with respect to plaintiff's declaratory judgment
claims. See Ritchie, 15 F.3d at 598. Consequently,
the Court will evaluate all submitted documentation and will
weigh the evidence to determine the factual existence of
subject matter jurisdiction over plaintiff's declaratory
judgment claim, giving no presumptive truthfulness to
plaintiff's allegations with respect to this claim.
Law Governing Standing, Ripeness, and Mootness
III standing is a threshold question in every federal case.
Wuliger v. Mfrs. Life Ins. Co., 567 F.3d 787, 793
(6th Cir. 2009). It “enforces the Constitution's
case-or-controversy requirement.” Loren v. Blue
Cross & Blue Shield of Mich., 505 F.3d 598, 607 (6th
Cir. 2007) (quoting Elk Grove Unified Sch. Dist. v.
Newdow, 542 U.S. 1, 11 (2004)). “The burden of
establishing standing is on the party seeking federal court
action.” Rosen v. Tenn. Comm'r of Fin. &
Admin., 288 F.3d 918, 927 (6th Cir. 2002).
establish Article III standing, a plaintiff must demonstrate:
(1) it has suffered an injury in fact that is (a) concrete
and particularized and (b) actual or imminent, not
conjectural or hypothetical; (2) the injury is fairly
traceable to the challenged action of the defendant; and (3)
it is likely, as opposed to merely ...