Brian Devereux v. Knox Cnty., Tenn.

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 21a0225p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

BRIAN B. DEVEREUX; RENEE DEVEREUX,

│

Plaintiffs-Appellees, │

> No. 19-6071

│

v. │

│

KNOX COUNTY, TENNESSEE, │

Defendant-Appellant. │

┘

Appeal from the United States District Court

for the Eastern District of Tennessee at Knoxville.

No. 3:17-cv-00197—J. Ronnie Greer, District Judge.

Argued: March 23, 2021

Decided and Filed: September 22, 2021

Before: BATCHELDER, GRIFFIN, and STRANCH, Circuit Judges.

_________________

COUNSEL

ARGUED: David S. Wigler, KNOX COUNTY, TENNESSEE, Knoxville, Tennessee, for

Appellant. Richard Everett Collins, II, STANLEY, KURTZ & COLLINS, PLLC, Knoxville,

Tennessee, for Appellees. ON BRIEF: David S. Wigler, KNOX COUNTY, TENNESSEE,

Knoxville, Tennessee, for Appellant. Richard Everett Collins, II, STANLEY, KURTZ &

COLLINS, PLLC, Knoxville, Tennessee, for Appellees.

_________________

OPINION

_________________

JANE B. STRANCH, Circuit Judge. Brian Devereux suffered a major stroke during or

around the period of his custody by Knox County for misdemeanor first-time DUI. Corrections

No. 19-6071 Devereux, et al. v. Knox Cnty., Tenn. Page 2

officers were in and out of the holding cell where he sat motionless for several hours but did not

provide medical attention until it was too late to mitigate the stroke’s effects. Devereux and his

wife, Renee Devereux,1 sued the officers and Knox County. They brought federal civil rights

claims as well as negligence claims under the Tennessee Governmental Tort Liability Act, which

waives sovereign immunity for certain claims, but not those arising from “civil rights.” After

years of litigation, the district court dismissed all of Devereux’s claims against the officers as

well as his civil rights claims against Knox County. It then declined to exercise supplemental

jurisdiction over the TGTLA claims and dismissed them without prejudice, allowing Devereux

to refile them in state court. Knox County objects, arguing that the district court should have

retained jurisdiction and determined that the TGTLA’s “civil rights exception” necessarily

barred Devereux’s negligence claims. The parties also move to certify a question about the civil

rights exception’s timing and scope to the Tennessee Supreme Court. We VACATE the district

court’s 2018 order denying Knox County’s first motion to dismiss only as to its rationale

regarding the TGTLA negligence claim and VACATE the portion of the district court’s order of

September 11, 2019, that relied on that vacated part of the district court’s 2018 order, AFFIRM

its judgment in all other respects, and DENY the parties’ joint motion to certify.

I. BACKGROUND

A. Factual Background

Late in the afternoon of June 3, 2016, Devereux turned himself in to the Knox County

Detention Facility to serve his sentence for a misdemeanor first-time DUI conviction. About an

hour later, he sat on a bench in a holding cell, which was monitored by a video camera (with no

audio), where he remained motionless and unresponsive for about six hours. During this time,

multiple corrections officers entered and exited the cell, carrying out their normal tasks, and

fellow detainees tried to wake Devereux (sometimes while officers were in the cell). Eventually,

officers and a nurse brought medical equipment; when an ambulance arrived, medical personnel

found Devereux “lying on the floor,” “hypotensive and hypoxic with a diminished respiratory

drive and shallow breath sounds” as well as “unconscious and only responsive to pain.”

1

Because the majority of the Devereuxs’ claims are asserted by Brian Devereux alone, we will typically

refer to the appellants as just “Devereux.”

No. 19-6071 Devereux, et al. v. Knox Cnty., Tenn. Page 3

Devereux was brought to the University of Tennessee Medical Center, where he

remained for 10 days. An MRI showed that he had suffered a stroke and associated injuries,

causing “permanent neurologic injury.” In the opinion of Dr. Kenneth Gaines, Devereux’s

treating neurologist, the stroke occurred shortly after he entered the holding cell. Devereux, who

worked as a mechanical engineer, now experiences “significant cognitive impairment” and has

“poor fine motor control and a tremor that interferes with activities of daily living,” among other

medical conditions. He asserts that had he received treatment earlier, it is likely that his injuries

would have been substantially mitigated.

B. Procedural Background

Brian and Renee Devereux brought claims against the corrections officers (the

“individual Defendants”) and Knox County under 42 U.S.C. § 1983 and the Eighth Amendment

for “deliberate indifference to and violation of Brian Devereux’s right to be provided adequate

medical care for a serious medical need.” In a separate claim, Devereux contended that the

individual Defendants and Knox County “owed [him] a duty to provide him adequate medical

care while he was in custody” and breached that duty, negligently violating their statutory duty to

“[s]ee that when sick [he had] proper medicine and medical treatment.” Tenn. Code Ann. § 41-

2-109(5). This count also asserted that the individual Defendants and Knox County were

“negligent per se for not complying with various provisions of state-established minimum

standards for jail facilities.”

In July 2017, Knox County filed a motion to dismiss for failure to state a claim (“first

motion to dismiss”). It argued that sovereign immunity barred the state-law claims under the

“civil rights exception” in the TGTLA, see Tenn. Code Ann. § 29-20-205(2), and that Devereux

failed to allege facts sufficient to allow the factfinder to determine “that Knox County has

customs, policies[,] or practices that encouraged deliberate indifference to serious medical

needs.” The individual Defendants filed a motion for judgment on the pleadings and a motion

for summary judgment, both based on qualified immunity. Knox County then filed a motion for

summary judgment, incorporating the arguments from its pending first motion to dismiss.

No. 19-6071 Devereux, et al. v. Knox Cnty., Tenn. Page 4

In September 2018, the district court granted in part and denied in part Knox County’s

first motion to dismiss, leaving only the TGTLA negligence claims against it. It concluded that

“Knox County has established that it is entitled to dismissal of Mr. Devereux’s municipal-

liability claim under § 1983 but has failed to show, under the TGTLA’s civil rights exception,

that it is entitled to dismissal of Mr. Devereux’s negligence claim.” The court also opined that

Tennessee law allowed a TGTLA claim to stand alone, without an accompanying civil rights

claim.

In October 2018, Knox County filed a second motion to dismiss, this time for lack of

subject-matter jurisdiction (“second motion to dismiss”). It also moved the court to certify to the

Tennessee Supreme Court a question about the point in the litigation at which a district court

should determine its subject-matter jurisdiction over TGTLA claims when the plaintiff also

brings claims under § 1983.

During extensive motion practice, the parties disputed the admissibility of the testimony

of Dr. Gaines, the neurologist who treated Devereux and who Devereux sought to introduce as

an expert. The district court ultimately excluded Dr. Gaines’s testimony because the disclosures

were inadequate—and because Devereux did not respond to the individual Defendants and Knox

County’s renewed motion to exclude and instead raised his arguments in objections to the

magistrate judge’s order. The court remarked:

The Court begins by emphasizing—as [the magistrate judge] did—the

importance of Dr. Gaines’ testimony about the timing of the stroke. Dr. Gaines is

Plaintiffs’ only expert witness, so his testimony that Mr. Devereux suffered a

stroke in the Knox County Jail is, by every appearance, necessary to establish a

violation under 42 U.S.C. § 1983—specifically, to establish that a delay in

medical treatment resulted in a constitutional violation.

(R. 135, Order, PageID 1382 (citations omitted))

On September 11, 2019, the district court also granted the individual Defendants’ motion

for summary judgment on the § 1983 claims but denied Knox County’s second motion to dismiss

and motion to certify. The court noted that without Gaines’s declaration, “the remaining

evidence in the record suggests that Mr. Devereux suffered a stroke after he was transported

from the Knox County Jail to the hospital.” The court declined to exercise supplemental

No. 19-6071 Devereux, et al. v. Knox Cnty., Tenn. Page 5

jurisdiction over the TGTLA claims and dismissed them without prejudice, allowing refiling in

state court. And it dismissed all remaining motions, including Knox County’s motion for

summary judgment, as moot. Devereux refiled his TGTLA claims against Knox County in state

court, and the state court entered an agreed order staying that case pending this appeal. Agreed

Order for Stay of Proceedings, Devereux v. Knox County, No. 3:354-19 (Tenn. Cir. Ct. Knox

Cnty. Jan. 16, 2020).

The parties filed notices of appeal, but all except Knox County voluntarily dismissed

their appeals. Knox County appealed the district court’s September 11, 2019, order.

Subsequently, Devereux and Knox County filed a joint motion asking us to certify the following

question to the Tennessee Supreme Court:

When does the GTLA’s civil rights exception attach in a case where, as here, the

plaintiff’s complaint avers claims against a Tennessee municipality under both 42

U.S.C. § 1983 (civil rights) and the GTLA (negligence) in the same action under

the same underlying facts?

(Dkt. 34-1 at 2)

II. ANALYSIS

A. Standard of Review

We review de novo a district court’s denial of a motion to dismiss for lack of subject-

matter jurisdiction or failure to state a claim. Rote v. Zel Custom Mfg. LLC, 816 F.3d 383, 387

(6th Cir. 2016); Beydoun v. Sessions, 871 F.3d 459, 464 (6th Cir. 2017). We review a district

court’s denial of a motion to certify a question to a state court for abuse of discretion. Church

Joint Venture, L.P. v. Blasingame, 947 F.3d 925, 930 (6th Cir. 2020).

B. The Civil Rights Exception and Knox County’s Motions

The civil rights exception provides that Tennessee governmental entities do not waive

their sovereign immunity “for injury proximately caused by a negligent act or omission of any

employee within the scope of his employment” if “the injury arises out of . . . [f]alse

imprisonment pursuant to a mittimus from a court, false arrest, malicious prosecution, intentional

trespass, abuse of process, libel, slander, deceit, interference with contract rights, infliction of

No. 19-6071 Devereux, et al. v. Knox Cnty., Tenn. Page 6

mental anguish, invasion of right of privacy, or civil rights.” Tenn. Code Ann. § 29-20-205

(emphasis added).2 Noting that this “exception has been construed to include claims arising

under 42 U.S.C. § 1983 and the United States Constitution,” we have held that “the plain

language of the TGTLA preserves immunity for suits claiming negligent injuries arising from

civil rights violations.” Johnson v. City of Memphis, 617 F.3d 864, 872 (6th Cir. 2010). In

Johnson, the plaintiff brought a Fourth Amendment claim under § 1983 and sought to add

Tennessee-law claims alleging negligence by an emergency dispatcher. Id. at 867, 871. The

district court denied her motion to amend on the ground that the civil rights exception would

render the additional negligence claim futile. Id. at 871. On de novo review, we affirmed the

decision, finding that the negligence claim “arises out of the same circumstances giving rise to

her civil rights claim under § 1983” and “therefore falls within the exception.” Id. at 872.

We have since applied Johnson’s analysis to similarly parallel civil rights and negligence

claims. See Savage v. City of Memphis, 620 F. App’x 425, 429–30 (6th Cir. 2015); Bryant v.

City of Memphis, 644 F. App’x 381, 384 (6th Cir. 2014). Tennessee courts have typically done

the same. See, e.g., Siler v. Scott, 591 S.W.3d 84, 96–98 (Tenn. Ct. App. 2019), appeal denied

(Oct. 11, 2019); Cochran v. Town of Jonesborough, 586 S.W.3d 909, 914–21 (Tenn. Ct. App.

2019), appeal denied (Aug. 4, 2019); Merolla v. Wilson County, No. M201800919COAR3CV,

2019 WL 1934829, at *4–6 (Tenn. Ct. App. May 1, 2019), appeal denied (Sept. 18, 2019).

In Tennessee, when a plaintiff’s civil rights claim is dismissed for failure to state a claim,

it remains an open question whether the district court must necessarily reach the parallel TGTLA

negligence claim or can instead decline to exercise supplemental jurisdiction. We have likewise

not conclusively answered the question but have touched upon adjacent issues. In Bryant, the

plaintiff brought an employment discrimination claim under 42 U.S.C. § 1981, which the district

court construed as having been brought under § 1983 and then dismissed. 644 F. App’x at 384;

see Johnson v. City of Shelby, 574 U.S. 10, 11–12 (2014) (per curiam). He also brought a claim

for negligent training, which the court dismissed under the civil rights exception. Bryant, 644 F.

App’x at 384. On appeal, Bryant argued that “if the district court had dismissed his improperly

brought § 1981 claim, there would have been no civil-rights bypass to the City’s liability for

2

Though this statute has been amended since the events in this case, this provision remains the same.

No. 19-6071 Devereux, et al. v. Knox Cnty., Tenn. Page 7

negligent training.” Id. (emphasis removed). Without commenting on whether this reasoning

was valid, we held that the district court acted properly by recasting the § 1981 claim. Id.

Meanwhile, prior to Johnson v. City of Memphis, we analyzed a district court’s decision that “did

not consider the distinction between a cause of action based on [a civil rights violation] and one

based on allegations of . . . independently negligent acts,” when the latter included other

circumstances that were both “temporally and factually distinct.” Partee v. City of Memphis, 449

F. App’x 444, 449 (6th Cir. 2011). While noting that “Tennessee state courts have not explicitly

determined whether the limited factual overlap between these claims would be sufficient to

render the City immune from the [negligence] claim under the GTLA,” we declined to reach the

issue of whether the GTLA barred the negligence claim because it was unnecessary to resolving

the appeal. Id. at 449–50.

In a similar situation, another Tennessee federal court recently employed the

same jurisdictional procedure as the district court did here. In Blevins v. Marion County,

No. 1:18-CV-53, 2020 WL 3036359 (E.D. Tenn. June 5, 2020), the plaintiff, a pretrial detainee,

“had a stroke and was not treated for ‘several hours’ afterwards.” Id. at *2. Like Devereux,

she brought federal civil rights claims in addition to claims for “violation of [Tenn. Code Ann.]

§ 41-2-109” and “state-law negligence” against individual defendants and Marion County. Id. at

*3. On the defendants’ motions to dismiss for failure to state a claim and for summary

judgment, the district court dismissed Blevins’s civil rights claims. Id. at *4–12. Finding that

her state-law claims were “predicated on Defendants’ alleged violation of her civil rights in

denying her medical care,” the court ruled that the civil rights exception afforded Marion County

immunity from those claims, but that Blevins could maintain them against the individual

defendants. Id. at *9. The district court declined to exercise supplemental jurisdiction over the

state-law claims due to “the interests of judicial economy and abstention from needlessly

deciding state-law issues.” Id. at *13.

In earlier comparable cases, Tennessee courts offered no indication that this procedure

posed a problem. See, e.g., Payne v. Tipton County, 448 S.W.3d 891, 894 n.1 (Tenn. Ct. App.

2014), appeal denied (Sept. 18, 2014); Payne v. Tipton County, No. 05-2310 MAP, 2006 WL

1967046, at *2 (W.D. Tenn. July 12, 2006); Parker v. Henderson County, No. W2009-00975-

No. 19-6071 Devereux, et al. v. Knox Cnty., Tenn. Page 8

COA-R3-CV, 2010 WL 377044, at *2 n.2 (Tenn. Ct. App. Feb. 4, 2010); Parker v. Henderson

County, 450 F. Supp. 2d 842, 857 (W.D. Tenn. 2006). Nor has our court found this procedure

objectionable. See, e.g., Siler v. Webber, No. 3:05-CV-341, 2009 WL 10680025, at *6 (E.D.

Tenn. Jan. 27, 2009) (declining to exercise supplemental jurisdiction over TGTLA claims), aff’d,

Siler v. Webber, 443 F. App’x 50 (6th Cir. 2011).

Decisions by district courts to decline supplemental jurisdiction over TGTLA claims

remaining after dismissing the core civil rights claims generally draw on our decision in Gregory

v. Shelby County, 220 F.3d 433 (6th Cir. 2000). There, the court dismissed the plaintiff’s

TGTLA claims against a corrections officer, declining to exercise supplemental jurisdiction. Id.

at 445. We affirmed, highlighting that 28 U.S.C. § 1367(c) allows district courts to decline

supplemental jurisdiction if “in exceptional circumstances, there are other compelling reasons for

declining jurisdiction” and that Tenn. Code Ann. § 29-20-307 confers upon Tennessee circuit

courts “exclusive original jurisdiction” over TGTLA claims. Gregory, 220 F.3d at 446. We

emphasized that “[i]n this instance, the Tennessee legislature expressed a clear preference that

TGTLA claims be handled by its own state courts. This unequivocal preference of the

Tennessee legislature is an exceptional circumstance for declining jurisdiction.” Id.

Federal district courts in Tennessee have echoed this point, noting that it “is even more

compelling where . . . the underlying federal claim has been dismissed.” Payne, 2006 WL

1967046, at *2; see also Parker, 450 F. Supp. 2d at 857; Siler, 2009 WL 10680025, at *6

(collecting cases). That is exactly what the district court did here, citing Gregory. And that is

substantially what happened in the cases that Knox County cites. Cochran, 586 S.W.3d at 911–

12; Cochran v. Town of Jonesborough, No. 2:17-CV-44, 2018 WL 1144816, at *7 (E.D. Tenn.

Mar. 2, 2018); Siler, 591 S.W.3d at 92; Siler, 2009 WL 10680025, at *1.

Knox County argues that Gregory is entirely inapplicable, contending that it “cannot be

read as creating a categorical rule precluding supplemental jurisdiction over TGTLA claims in

every case.” True, Gregory creates no categorical bar—or requirement. Gregory simply holds

that it is valid, under 28 U.S.C. § 1367, for a district court to exercise its discretion to decline to

retain supplemental jurisdiction. That holding is consistent with the actions of the district court

here and those taken in cases like Blevins. Knox County then argues that our decisions in

No. 19-6071 Devereux, et al. v. Knox Cnty., Tenn. Page 9

Briscoe v. Fine, 444 F.3d 478 (6th Cir. 2006), and Grover by Grover v. Eli Lilly & Co., 33 F.3d

716 (6th Cir. 1994), control over Gregory. But Knox County’s lengthy quotation from Briscoe

refers to the court’s jurisdiction to hear a cross-appeal about whether a dismissal of pendent

state-law claims should have been with prejudice—not at issue here—and the remainder of the

case concerns the application of ERISA—a federal law, unlike the TGTLA. 444 F.3d at 495–

501. And the possibility of undue prejudice to a defendant resulting from a dismissal without

prejudice which Grover discusses seems minimal when applied to this case. See 33 F.3d at 718–

19. Tennessee courts, moreover, have regularly countenanced federal district courts’ dismissals

without prejudice of TGTLA claims. Finally, there is no need here to resolve the issue of

whether speculative prejudice to a defendant can ever outweigh the strong preference of the

Tennessee legislature to have Tennessee courts decide those claims.

Knox County also posits that declining to exercise supplemental jurisdiction over

TGTLA claims after dismissing federal civil rights claims will lead to procedural maneuvering

that will deprive Tennessee governmental entities of a meaningful opportunity to assert

sovereign immunity. But denials of motions to dismiss that assert sovereign immunity are

immediately appealable as collateral orders. Town of Smyrna v. Mun. Gas Auth. of Georgia, 723

F.3d 640, 645 (6th Cir. 2013); Kelly v. Great Seneca Fin. Corp., 447 F.3d 944, 948 (6th Cir.

2006). That provides an appropriate opportunity for Tennessee governmental entities to litigate

and vindicate any sovereign immunity they can validly assert.

And that remains a secondary issue because the Tennessee Court of Appeals has already

threaded the needle on this argument:

[W]e are . . . unpersuaded by Appellant’s argument that because the district court

dismissed Appellant’s federal claims at the summary judgment stage, there were

no civil rights violations, and section 29-20-205(2) [the civil rights exception] is

thereby inapplicable. Appellant asserts in his brief that “the [f]ederal [c]ourt

specifically found, based on the [d]efendants[’] [m]otions, that there were no

‘civil-rights’ violations.” Respectfully, we disagree. Nothing in the language of

section 29-20-205(2) indicates that there must be an express finding that a civil

rights violation occurred in order for the exception to apply. Indeed, immunity

offered by section 29-20-205 is broad, preserving immunity for negligence

claims so long as the “injury arises out of . . . civil rights.” Tenn. Code Ann.

§ 29-20-205(2). Here, there is no dispute that Appellant originally claimed that

his injuries arose from violations of his civil rights . . . . As such, the district court

No. 19-6071 Devereux, et al. v. Knox Cnty., Tenn. Page 10

never concluded that the injuries alleged by Appellant did not sound in civil

rights; rather, the district court simply concluded that Appellant failed to put forth

sufficient evidence at the summary judgment stage to proceed with his action.

Moreover, none of the cases discussed herein indicate that section 29-20-205(2)

requires the claimant to be successful in his or her civil rights claim in order for

the civil rights exception to apply to corresponding state law claims. As such,

Appellant’s argument in this regard is simply without basis.

Cochran, 586 S.W.3d at 919–20; see also Siler, 591 S.W.3d at 97.

This is very similar to the situation presented here. When confronting issues of state law,

we view intermediate state appellate courts’ decisions as persuasive “unless it is shown that the

state’s highest court would decide the issue differently,” and no such showing has been made

here. In re Dow Corning Corp., 419 F.3d 543, 549 (6th Cir. 2005). Cochran and cases like it

counsel a particular course of action: the district court may decline to exercise supplemental

jurisdiction over TGTLA cases, leaving it to the Tennessee courts to decide those claims in the

first instance. As in Cochran, it could be that once in state court, TGTLA claims that arose from

the same set of facts as the federal civil rights claims decided in federal court are unlikely to

succeed. But as Cochran and cases like it indicate, Tennessee’s courts are best situated to

resolve that question. Thus, under governing precedent, the district court did not abuse its

discretion by declining to exercise supplemental jurisdiction over Plaintiffs’ TGTLA claims.

Knox County also contends that the district court’s order denying its first motion to

dismiss (asserting sovereign immunity on the TGTLA claims because they arose from his civil

rights claims) is unduly prejudicial because collateral estoppel will prevent it from litigating that

issue in state court. That September 2018 order stated:

But the Court has no need to determine whether Mr. Devereux’s

negligence claim arises out of his § 1983 claim because it has already concluded

that his § 1983 claim requires dismissal, leaving no civil-rights claim standing

against Knox County. Without an existing civil-rights claim from which the

negligence claim against Knox County can “directly flow,” . . . the negligence

claim cannot come within subsection 29-20-205(2)’s civil-rights exception. The

viability of this claim now simply depends on whether Mr. Devereux has pleaded

sufficient facts under each of the elements that comprises a negligence claim

under Tennessee law . . . . Knox County, however, does not challenge the

sufficiency of the allegations as they pertain to the elements of Mr. Devereux’s

negligence claim itself. The Court therefore offers no opinion as to whether Mr.

No. 19-6071 Devereux, et al. v. Knox Cnty., Tenn. Page 11

Devereux states a plausible negligence claim under Tennessee law, and it will

allow this claim to survive dismissal.

(R. 75 at PageID 551 (emphasis added))

In its later order of September 11, 2019, the district court described its previous order:

[T]he Court dismissed Mr. Devereux’s municipal liability claim against Knox

County, but it declined also to dismiss Mr. Devereux’s negligence claim against

Knox County under the TGTLA’s civil-rights exception, observing that, under

Tennessee law, a TGTLA claim could potentially stand alone—that is, without an

accompanying civil-rights claim under § 1983.

(R. 136 at PageID 1405)

At the time of its decision on Knox County’s first motion to dismiss, the district court did

not have the benefit of the decision of the Tennessee Court of Appeals in Cochran. By the time

the district court entered its order of September 11, 2019, Cochran had been published, but the

district court did not address it. This timing notwithstanding, “[t]he general rule . . . is that an

appellate court must apply the law in effect at the time it renders its decision.” Henderson v.

United States, 568 U.S. 266, 271 (2013) (second alteration in original) (quoting Thorpe v. Hous.

Auth., 393 U.S. 268, 281 (1969)).

Cochran suggests that the district court’s statement—that the civil rights exception can

only apply if a civil rights claim is currently pending—was erroneous. The court was correct

that after it dismissed Devereux’s municipal liability claim against Knox County, no civil rights

claims were pending. But under Cochran, the issue is whether the claims “did not sound in civil

rights,” and the presence of a civil rights claim is not strictly necessary for the civil rights

exception to apply to parallel TGTLA claims. Cochran, 586 S.W.3d at 920. Given the district

court’s now-incorrect statement of law, concern regarding collateral estoppel in subsequent

proceedings is justified because “even an erroneous judgment is entitled to preclusive effect as

long as all the other prerequisites have been met.” Mullins v. State, 294 S.W.3d 529, 537 n.3

(Tenn. 2009). And here, when the mandate in this case becomes effective, the issue will have

been fully “actually raised, litigated, and decided on the merits” in the earlier proceeding (this

case), with the decision made final, and with Knox County having “had a full and fair

opportunity” to argue the matter. Id. at 535.

No. 19-6071 Devereux, et al. v. Knox Cnty., Tenn. Page 12

The best approach on this record, then, is to give the Tennessee courts a fresh opportunity

to consider whether Plaintiffs’ TGTLA claims against Knox County “did not sound in civil

rights,” Cochran, 586 S.W.3d at 920, per the Tennessee legislature’s strong preference. We

therefore vacate the rationale of the district court’s 2018 order on Knox County’s first motion to

dismiss regarding the TGTLA claim (R. 75 at PageID 551), and do so in order to prevent any

issue of collateral estoppel in state court based on this aspect of the district court’s reasoning.

We also vacate the part of the district court’s order of September 11, 2019 (R. 136 at PageID

1404–06), which relies on that aspect of the district court’s 2018 order. We do not disturb the

remainder of the district court’s order of September 11, 2019.

C. Motion to Certify

Tennessee, like other states, invites federal courts of appeals to certify questions of law,

which its Supreme Court may answer at its discretion. Tenn. Ct. R. 23(1). The certifying court

must “determine[] that, in a proceeding before it, there are questions of [Tennessee] law . . .

which will be determinative of the cause and as to which it appears to the certifying court there is

no controlling precedent in the decisions of the Supreme Court of Tennessee.” Id. Tennessee’s

rule mirrors our explanation that certification “is a matter within the discretion of the court” and

is “most appropriate when the question is new and state law is unsettled.” State Auto Prop. &

Cas. Ins. Co. v. Hargis, 785 F.3d 189, 194 (6th Cir. 2015) (quoting Transamerica Ins. Co. v.

Duro Bag Mfg. Co., 50 F.3d 370, 372 (6th Cir. 1995)). We do “not trouble our sister state courts

every time an arguably unsettled question of state law comes across our desks.” Id. (quoting

Pennington v. State Farm Mut. Auto. Ins. Co, 553 F.3d 447, 450 (6th Cir. 2009)). Instead,

“[w]hen we see a reasonably clear and principled course, we will seek to follow it ourselves”;

“[t]he state court need not have addressed the exact question, so long as well-established

principles exist to govern a decision.” Id. Certain procedural concerns matter when deciding a

motion to certify, including that “the appropriate time for a party to seek certification of a state-

law issue is before, not after, the district court has resolved the issue.” Id.

Certification of the question the parties have proposed is not warranted here. As

discussed above, there exists sufficient Tennessee appellate case law addressing questions

similar to the one the parties seek to certify. The broad ruling that the parties would have the

No. 19-6071 Devereux, et al. v. Knox Cnty., Tenn. Page 13

Tennessee Supreme Court make is not necessary to resolve this case. Moreover, given that the

Tennessee legislature strongly prefers that Tennessee courts adjudicate TGTLA claims (and

matters of Tennessee law in general), there is no need to impose the delays that would result

from invoking the certification procedure when the option of letting the parties litigate this issue

in Tennessee courts alone is readily available.

III. CONCLUSION

For the reasons discussed above, we VACATE the portion of the district court’s 2018

order denying Knox County’s first motion to dismiss the Devereuxs’ TGTLA claims only as to

its rationale regarding the TGTLA negligence claim and also VACATE the portion of the

district court’s order of September 11, 2019, that relied on the vacated part of its 2018 order. We

AFFIRM the district court’s judgment in all other respects, and DENY the parties’ joint motion

to certify.