                           File Name: 10a0715n.06
                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                          No. 09-5940

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                       FILED
                                                                                   Nov 17, 2010
DENNIS RAY JOHN MOORE,                          )                             LEONARD GREEN, Clerk
                                                )
       Plaintiff-Appellant,                     )
                                                )
v.                                              )    ON APPEAL FROM THE UNITED
                                                )    STATES DISTRICT COURT FOR THE
COFFEE COUNTY, TN; COFFEE COUNTY                )    EASTERN DISTRICT OF TENNESSEE
SHERIFF’S DEPARTMENT; SHERIFF                   )
STEVE GRAVES,                                   )
                                                )
       Defendants-Appellees.                    )



       Before: MERRITT, GIBBONS, and COOK, Circuit Judges.


       COOK, Circuit Judge. Dennis Moore filed suit in the Coffee County Circuit Court alleging

that, during his incarceration, the defendants failed to provide him with adequate medical care in

violation of the Eighth Amendment of the United States Constitution and Tennessee negligence law.

The defendants removed the case to the United States District Court for the Eastern District of

Tennessee and then moved for summary judgment. Moore failed to respond. The district court

granted the motion, dismissed Moore’s federal claims with prejudice, and dismissed without

prejudice his remaining state claims.


       Moore then filed a motion to alter or amend judgment under Federal Rule of Civil Procedure

59(e), requesting—for the first time—that the district court remand the pendent state law claims
 No. 09-5940
 Moore v. Coffee Cnty.


 rather than dismiss them. Dismissal without prejudice acted as a dismissal with prejudice, he

 contended, because the expiration of the limitation period foreclosed his refiling. In denying the

 motion, the district court held that Moore could not avail himself of Rule 59(e) because he failed to

 alert the court to the remand issue prior to the entry of judgment. Moore now appeals the district

 court’s dismissal of his pendent claims and denial of his Rule 59(e) motion. We affirm.


                                                   I.


                                  A. Dismissal of Pendent Claims


       Moore articulates his appellate issue in the following way: “After dismissing all of the

Appellant’s Federal claims . . . the District Court err[ed] in not remanding the remaining State

negligence claims to the original State Court from which they were removed.” [Appellant’s Br. 3.]

We review for abuse of discretion a district court’s dismissal of pendent state claims. Dobbs-

Weinstein v. Vanderbilt Univ., 185 F.3d 542, 546 (6th Cir. 1999). When a district court dismisses all

claims over which it has original jurisdiction, it may decline to exercise jurisdiction over any pendent

claims. 28 U.S.C. § 1367(c)(3). The court may, in its sound discretion, either dismiss the claims

without prejudice, see Dobbs-Weinstein, 185 F.3d at 546, or remand them, see Long v. Bando Mfg.

of Am., Inc., 201 F.3d 754, 761 (6th Cir. 2000).


       Though Moore acknowledges that § 1367(c) authorized the district court to dismiss his

pendent claims, he contends that the court abused its discretion here because he could not refile the


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 Moore v. Coffee Cnty.


dismissed claims in state court due to untimeliness. Moore failed, however, to voice this concern at

any point before the court dismissed his claims. He could have moved the court to remand before

judgment, but he did not. He could have responded to the defendants’ motion for summary judgment,

noting his interest in remand, but he did not. Or he could have filed a separate case in state court, but

he did not. No abuse of discretion results from a court’s failing to anticipate an ancillary—and

unvoiced—consequence of its legitimate dismissal.


                                   B. Denial of Rule 59(e) Motion


       Though he fails to raise the issue explicitly, Moore appears to argue that even if the district

court properly dismissed his pendent claims, it improperly denied his post-judgment Rule 59(e)

motion that explained the statute-of-limitations bar and requested remand. We again review for abuse

of discretion, GenCorp., Inc. v. Am. Int’l Underwriters, 178 F.3d 804, 832 (6th Cir. 1999), and the

language of Rule 59(e) itself limits its reach. A district court may grant a Rule 59(e) motion only to

(1) correct a clear error of law, (2) account for newly discovered evidence, (3) accommodate an

intervening change in the controlling law, or (4) otherwise prevent manifest injustice. Id. at 834.

Moore appears to label his inability-to-refile predicament as a “manifest injustice,” lamenting that the

statute of limitations expired on the claims, see Tenn. Code Ann. § 28-3-104, and that neither the

federal nor the Tennessee savings statute—which might have preserved his claims—applies to suits

against state or county entities, see 28 U.S.C. § 1367(d); Tenn. Code Ann. § 28-1-115.




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 No. 09-5940
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          Unsurprisingly, Moore cites no authority suggesting that a court’s dismissal of pendent claims

without prejudice—even where the statute of limitations bars the plaintiff from refiling—qualifies

as a manifest injustice under Rule 59(e) when the movant neglected to raise the issue before summary

judgment. Indeed, this court has long held that “[a] Rule 59(e) motion . . . is not the proper vehicle

to raise arguments that should have been made before judgment.” Russell v. GTE Gov’t Sys. Corp.,

141 F. App’x 429, 434 (6th Cir. 2005).


          Even had Moore requested remand prior to judgment, and even if his inability to refile his

claims in state court constituted a manifest injustice under Rule 59(e), the federal savings statute

guards against such “unjust” dismissals by allowing thirty additional days to refile a state claim. See

28 U.S.C. § 1367(d). Though Moore correctly argues sovereign immunity precludes application of

this statute to a non-consenting state party, the Supreme Court recently clarified that it applies to non-

consenting political subdivisions such as counties. See Jinks v. Richland Cnty., 538 U.S. 456, 465–66

(2003).


          Relying on three cases, Moore insists, oddly, that Tennessee courts would not follow Jinks.

Two of these cases, however, preceded Jinks, and the other did not concern § 1367(d). See Lynn v.

City of Jackson, 63 S.W.3d 332 (Tenn. 2001) (preceding Jinks); Nance v. City of Knoxville, 883

S.W.2d 629 (Tenn. Ct. App. 1994) (same); Farmer v. Tenn. Dep’t of Safety, 228 S.W.3d 96 (Tenn.

Ct. App. 2007) (holding state savings statutes inapplicable to suits against state). Indeed, federal

courts in Tennessee—recognizing that Jinks overruled the line of cases Moore cites—apply § 1367(d)


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to state negligence claims against counties. See, e.g., Willis v. Shelby Cnty., No. 05-2625, 2007 WL

3231817 (W.D. Tenn. Oct. 30, 2007). Moore thus provides no authority suggesting that the Coffee

County Circuit Court would have rejected his claims had he refiled them pursuant to § 1367(d).


                                                 II.


       Because Moore neglected to request remand prior to judgment, we discern no abuse of

discretion in the dismissal of Moore’s claims without prejudice or the denial of Moore’s Rule 59(e)

motion. And though the statute of limitations currently bars Moore from refiling his claims in state

court, nothing precluded him from refiling them within thirty days of the district court’s dismissal.

We affirm.




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