Kellom v. United States

          OPINION & ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

          Sean F. Cox, United States District Judge.

         A young man named Terrance Kellom was shot and killed on April 27, 2015, when a United States Marshal Detroit Fugitive Apprehension Team was attempting to arrest him at his father's home in Detroit, Michigan. This is the second federal lawsuit that attorney Nabih Ayad has filed on behalf of the family members and Estate of Terrance Kellom that is based upon that shooting. While the original complaint included the Estate as a plaintiff in this second case, Plaintiffs' Counsel filed an amended complaint that dropped the Estate as a plaintiff. Thus, the only remaining Plaintiffs are various family members who assert Federal Tort Act Claims against the United States, in their individual capacities. The United States filed a Motion to Dismiss under Fed.R.Civ.P. 12(b)(6) but it references and relies on materials outside of the pleadings. As such, the Court is treating it as a summary judgment motion. The parties have fully briefed the issues and the Court concludes that a hearing is not necessary. Local Rule 7.1(f). For the reasons set forth below, the Court shall GRANT the motion and dismiss the claims in this case with prejudice.

         BACKGROUND

         Terrance Kellom was shot and killed on April 27, 2015, when a United States Marshal Detroit Fugitive Apprehension Team was attempting to arrest him at this father's home in Detroit, Michigan. At the time of the shooting, Terrance Kellom's father (Kevin Kellom) and sister (Teria Kellom) were present inside the home.

         This is the second federal lawsuit that attorney Nabih Ayad has filed on behalf of the family members and Estate of Terrance Kellom that is based upon that shooting.

         Case Number 17-11084 (“Kellom I”)

         On April 6, 2017, Plaintiff Nelda Kellom, as Personal Representative of the Estate of Terrance Kellom, Deceased (“the Estate”), filed the first federal case, Case Number 17-11084.

         The Estate's original complaint named the following Defendants: 1) Immigration and Customs Enforcement Agent Mitchell Quinn; 2) Detroit Police Officer Darell Fitzgerald; and 3) Detroit Police Officer Treva Eaton. The Estate's original complaint included the following four counts: 1) “Bivens Claim” (Count I); 2) “42 U.S.C. § 1983 - Excessive Force and/or Unlawful Use of Deadly Force” (Count II); 3) “§ 1983 Conspiracy by Defendants” (Count III); and 4) “Wrongful Death [under] Michigan Wrongful Death Act, Mich. Comp. Laws § 600.2922 et seq, ” (Count IV). The Estate's original complaint acknowledged Defendant Quinn's federal employment and his participation in a federal task force during the incident. (See Compl. at ¶ 11) (“Defendant Mitchell Quinn is, and at all relevant times herein was, a federal law enforcement agent employed by Immigration and Customs Enforcement, a federal agency organized and existing under the laws of the United States. Defendant Quinn was at all relevant times herein a member of the Detroit Fugitive Apprehension Team who shot and killed Terrance. Defendant Quinn acted . . . within the course and scope of his employment, and under color of federal law.”).

         The Estate did not submit an administrative claim to the Department of Homeland Security before filing Case Number 17-11084 on April 6, 2017.

         On April 25, 2017, acting through its counsel, the Estate submitted an administrative tort claim to the Department of Homeland Security. (ECF No. 7-4).

         On June 30, 2017, the Estate filed a motion seeking to extend the summonses in Kellom I. Thereafter, the Defendants were served with the summons and complaint.

         The Department of Homeland Security denied the Estate's administrative claim in a letter mailed on February 1, 2018. (ECF No. 7-6). That letter expressly advised that, if the Estate disagreed with the denial, it could file suit in federal court “not later than sixth months after the date of mailing of this notification of denial. 28 U.S.C. § 2401(b).” (Id.).^[1]

         In a detailed e-mail sent to the Estate's Counsel on February 21, 2018, Counsel for the United States explained that the Estate's FTCA claim that had been asserted in Kellom I was premature, lacked jurisdiction, and that the Estate's FTCA claim could only be saved by filing a timely new lawsuit on behalf of the Estate:

Nabih:

In Kellom v. Quinn et al., it was good to meet you yesterday. As we discussed, there is a path to properly pleading a tort claim against the United States, now that you have received a dismissal of the administrative claim.

The current complaint, however, was obviously filed before that denial. Amending this complaint to include a tort claim against the proper defendant, the United States, would still be jurisdictionally defective. See Duplan v. Harper, 188 F.3d 1195, 1199 (6th Cir. 1999) (generally, a “complaint cannot be cured through amendment, but instead, [a] plaintiff must file a new suit.”) (internal quotations and citation omitted); Van Horn v. Walton, Case No. 12-11880; 2013 WL 119252, *2 (E.D. Mich. Jan. 9, 2013) (rejecting as futile an effort to cure jurisdictional defect in a prematurely filed complaint through amendment); see also McNeil v. United States, 508 U.S. 106, 111-12, 113 (1998) (affirming dismissal of suit filed before exhaustion of administrative remedies).

If, however, you filed a new, additional complaint with a tort claim under the FTCA against the United States, that hurdle would not be present. Assuming you filed a second complaint, you would note the current complaint on the civil cover sheet. Then we could provide a joint proposal to consolidate the second complaint with the first complaint. That way, all of the claims would travel together, with no inconvenience to the Court.

Also, the first complaint would remain pending, with no effect on your existing claims under Bivens against Agent Mitchell Quinn. We would suggest, however, that you voluntarily dismiss the tort claim against him (though only that claim), since your second complaint would include a proper FTCA claim against the United States. That would resolve at least one issue in the pending dismissal motion.

So, my proposal is as follows:

1. Plaintiff files a second complaint under the FTCA against the United States, noting the first complaint on the civil cover sheet.

2. After the second complaint is filed, we submit a proposed order to consolidate the second case with the first case (proposal attached). . . .

Please let me know if you have any questions or concerns . . .

(ECF No. 7-7)

         After receiving that February 21, 2018 email, however, the Estate's Counsel did not file a new lawsuit in order to assert the Estate's then-exhausted FTCA claims.

         On May 4, 2018, Plaintiff's Counsel filed a First Amended Complaint in Kellom I, adding named parties and claims. In addition to the Estate, seven of the Decedent's family members asserted claims in Plaintiffs' First Amended Complaint in their individual capacity (Nelda Kellom, Kevin Kellom, Teria Kellom, Lawanda Kellom, Terrell Kellom, and Janay Williams, on behalf of Terrance Kellom's two minor children). The Court will refer to these parties, collectively, as the “Non-Estate Plaintiffs.” The First Amended Complaint included the following eight counts: 1) a Bivens excessive force claim (Count I); 2) a § 1983 excessive force claim (Count II); 3) a § 1985 conspiracy claim (Count III); 4) a Bivens conspiracy claim (Count IV); 5) a wrongful death claim under Michigan law (Count V); 6) a claim for intentional infliction of emotional distress under Michigan law (Count VI); 7) a Steagald claim (Count VII); and 8) a § 1983 Monell liability claim (Count VIII).

         Less than two weeks later, on May 16, 2018, the United States filed a Motion to Dismiss asserting, among other things, that the FTCA claims asserted by the Non-Estate Plaintiffs must be dismissed because they failed to present their claims to the agency before filing suit in Kellom I. (ECF No. 35). After that motion was filed, Plaintiffs' Counsel did not submit an administrative claim to the Department of Homeland Security on behalf of the Non-Estate Plaintiffs.

         A number of claims were dismissed in connection with motions to dismiss filed by the various Defendants. (ECF No. 52). Among other things, this Court's August 29, 2018 Opinion & Order dismissed the FTCA claims of the Non-Estate Plaintiffs for failure to exhaust. (Id. at PageID.566) (The “Court concludes that all Non-Estate Plaintiffs failed to exhaust their administrative remedies prior to filing the First Amended Complaint. Thus, as Plaintiffs' Counsel acknowledged at the hearing, Count V & VI must be dismissed as to the Non-Estate Plaintiffs for failure to exhaust administrative remedies.”).

         On October 3, 2018 - nearly five months after the Government filed its motion noting the failure to exhaust - administrative tort claims were submitted to the Department of Homeland Security on behalf of the Non-Estate Plaintiffs. (ECF No. 7-8). The Agency ultimately denied the claims of the Non-Estate Plaintiffs on February 1, 2019. (ECF No. 7-5).

         Meanwhile, Kellom I proceeded with the claims and Defendants that remained. Following the close of discovery, Defendants filed summary judgment motions as to the remaining claims.

         In an Opinion and Order issued on May 21, 2019, this Court denied Defendant Mitchell Quinn's request for summary judgment as to the Estate's excessive force claim. As to all remaining claims, this Court granted summary judgment in favor of Defendants.

         This Court's May 21, 2019 Opinion and Order did not dispose of all claims in Kellom I and no judgment was issued. Nevertheless, on May 31, 2019, Plaintiffs' Counsel filed a ...