The opinion of the court was delivered by: WILLIAM HART, Senior District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs Brianna Jenkins and Donnell Davis*fn1 filed this action
in the Circuit Court of Cook County, Illinois. Named as defendants are
the Board of Education of the City of Chicago (the "Board"), Fenger High
School ("Fenger"),*fn2 and Dustin Berrien. Defendants removed the case
to federal court and plaintiffs have moved to remand the case.
According to the allegations of the complaint, Jenkins was a student at
Fenger and Berrien was a teacher and/or coach.
Berrien allegedly had inappropriate sexual contact with Jenkins. It
is also alleged that Berrien had engaged in prior sexual misconduct with
other students and that school employees knew or should have known of
this prior misconduct, but did not take action to prevent further
Plaintiffs' Complaint has nine counts. Counts I through VIII are
brought by Jenkins and Count IX is brought by Davis, The Counts are
labeled as follows: Count I negligence against the Board and
Fenger; Count II wilful and wanton negligence against the Board
and Fenger; Count III negligent infliction of emotional distress
against the Board and Fenger; Count IV wilful and wanton
negligent infliction of emotional distress against the Board and Fenger;
Count V negligence against Berrien; Count VI wilful and
wanton negligence against Berrien; Count VII negligent infliction
of emotional distress against Berrien; Count VIII wilful and
wanton negligent infliction of emotional distress against Berrien; Count
IX Family Expense Act claim.*fn3
Each count contains an identical ¶ 19 which reads:
19. That on or about September 3, 2002, and at
all times relevant, the Defendants owed a duty to
protect, the minor Plaintiff from known and
unknown harm, and to provide her with an education
without being subjected to sexual discrimination,
under Illinois common law, the Illinois
Constitution and Title IX.
Defendants contend this case was properly removable because the claims
involve a federal question in that each count alleges violations of Title
IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a),
Plaintiffs expressly disclaim that they are bringing any claim under
Title IX. They contend they are bringing state law claims only and that
the reason Title IX is mentioned in the complaint is because, under
Illinois common law, violation of a federal statute may be considered as
evidence of negligence or fault. See Abbasi ex rel. Abbasi v.
Paraskevoulakos, 187 Ill.2d 386, 71S N.E.2d 181, 185 (1999);
Fournier v. Luftshansa German Airlines, 191 F. Supp.2d 996,
1001 (N.D. Ill. 2002).
Section 1681(a) provides in part that no person shall be subjected to
discrimination on the basis of sex under any educational program or
activity receiving federal financial assistance. Title IX has been
construed as providing that a federally funded school district may be
liable for being deliberately indifferent in failing to stop sexual
molestation or harassment by one of its employees. Gebser y. Lago
Vista Independent School District, 524 U.S. 274, 290 (1998);
Kinman v. Omaha Public, School District, 171 F.3d 607, 609-10
(8th Cir. 1999). see also Davis v. Monroe County Board of Education,
526 U.S. 629, 641 (1999) (sexual harassment by another student);
Gabrielle. M. v. park Forest Chicago Heights, Ill. School
District 163, 315 F.3d 817, 821-22 (7th Cir. 2003) (same).
The private right of action under Title IX, however, may only be
brought against the recipient of federal funding; it may not be brought
against someone who is simply an employee of the recipient, Smith v.
Metropolitan Schoo1 District Perry Township, 128 F.3d 1014, 1018-19
(7th Cir. 1997), cert. denied, 524 U.S. 951 (1998);
Kinman, 171 F.3d at 610-11. Thus, in the present case, any
possible private right of action under Title IX may only be brought
against the Board and/or Fenger. No Title IX claim could be brought
against Berrien individually.
Since the Complaint labels the claims as being state law tort and
statutory claims and since plaintiffs disclaim any intention of pursuing
a private right of action under Title IX, the Complaint must be construed
as bringing state law claims. McPhail v. WalMart Stores, Inc.,
2003 ML 1750886 *3 (D. Kan. March 27, 2003); Walker v. Atwood
Chevrolet-Olds.Inc., 189 F. Supp.2d 594, 599 (S.D. Miss. 2001);
Greer v. MAJR Financial Corp., 105 F. Supp.2d 583, 591 n.6
(S.D. Miss. 2000). Therefore, removal was only proper if the possible
violation of Title IX that may be used as evidence of negligence or
wilful conduct for one or more of the state law claims makes such claims
turn on a federal question to an extent sufficient to confer federal
jurisdiction under 28 U.S.C. § 1331.
Not every case in which a federal question is "an ingredient" contains
claims "arising under" federal law as that term is used in § 1331.
Merrell Dow Pharmaceuticals Inc. v. Thompson,
478 U.S. 804, 807 (1986).*fn4 It is true "that a case may arise
under federal law `where the vindication of a right under state law
necessarily turned on some construction of federal law,'" id.,
at 808 (quoting Franchise Tax Board v. Construction Laborers
Vacation Trust, 463 U.S. 1, 9 (1983)). However, the presence of such
a factor does not automatically make the case one in which a federal
question arises. Instead, the particulars of the case must be considered.
Merrell Dow, 478 U.S. at 810, 813-14. Merrell Dow
stands for the proposition that the lack of a particular factor will
preclude the possibility of federal question jurisdiction. Even if a
nonfederal cause of action involves construction of a federal statute,
federal question jurisdiction will not lie if the federal statute does
not provide for a private right of action. Id., at 812, 817;
Seinfeld v. Austen, 39 F.3d 761, 764 (7th Cir. 1994),
cert. denied, 514 U.S. 1126 (1995); Fournier,
191 F. Supp.2d at 1001. That, though, is not the situation in the present
case. As discussed above, Title IX does provide for a private right of
action against the Board and/or Fenger in the present type of situation.
Therefore, additional factors have to be considered.
. . . [T]he court must examine the centrality
of the federal law to the claim and consider
policy factors. "What is needed is something of
that common-sense accommodation of judgment to
kaleidoscopic situations which
characterizes the law in its treatment of
causation . . . a selective process which picks
the substantial causes out of the web and lays the
other ones aside." Franchise Tax Board,
463 U.S. at 20, 103 S.Ct. 2841, quoting,
Gully v. First National Bank, 299 U.S. 109,
117-13, 57 S.Ct. 96, 81 L.Ed. 70 (1936).
The evaluation of the importance of the federal
issue to the state claim has been stated
variously. As discussed in Hunter V. United
Van Lines, 746 F.2d 635 (9th Cir. 1984),
cert. denied, 474 U.S. 863 (1985),
courts have stated that the federal element in a
claim must be "direct and essential as opposed to
attenuated," "basic as opposed to collateral,"
"necessary as opposed to merely possible,"
"pivotal," "substantial as opposed to merely
incidental" or "paramount as opposed to
collateral," Hunter, 746 F.2d at 646
(internal quotations omitted). The fact that the
state claim "hinges on" federal law is not, in and
of itself, sufficient. Id. at 645-46. In
Hunter, the court held that the fact
that the federal element determined as a
preliminary matter whether the state law duty of
good faith applied was insufficient. Id.
at 646. Just as the creation [of] property rights
through federal land patents, trademarks and
copyrights has been held not to transform state
law actions to enforce contract and property
rights into federal claims, the federal element in
Hunter (contract claim based on federal
law) was deemed to be involved only
"incidentally;" the bad faith count "fundamentally
asserts [state] claims." Id. at 647
(quotations omitted). Similarly, in Moore v.
Chesapeake & O. Ry. Co., 291 U.S. 205
(1934), and Merrell Dow,
supra, "the violation of the federal
standard as an element of state tort recovery did
not fundamentally change the state tort nature of
the action," Merrill Dow, 478 U.S. at
814 n.12, 106 S.Ct. 3229, citing,
Moore, 291 U.S. at 216-17,
54 S.Ct. 402.
"[D]eterminations about federal jurisdiction
require sensitive judgments about congressional
intent, judicial power, and the federal system."
Merrell Dow, 478 U.S. at 810,
106 S.Ct. 3229. The analysis must be informed by "the
demands of reason and coherence, and the dictates
of sound judicial policy." Id.
Precision Pay Phones v. Qwest Communications Corp.,
210 F. Supp.2d 1106, 1117-18 (N.D. Cal, 2002).
Another important factor is that, where violation of the federal
statute is only an alternative basis for establishing a state law claim,
there will generally be an insufficient basis for finding the presence of
federal question jurisdiction. Rains v. Criterion Systems,
Inc., 80 F.3d 339, 346 (9th Cir. 1996); Dantzler v. Nationwide
Credit, Inc., 1999 WL 1939258 *4 (M.D.N.C. Feb. 17, 1999);
Wagner v. Regent Investments, Inc., 903 F. Supp. 966, 970 (E.D.
Va. 1995). See also Christianson v. Colt Industries ...