# Porter v. Cuyahoga County

> District Court, N.D. Ohio · March 17, 2020

URL: https://www.frixlaw.com/law-library/cases/10368171

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** March 17, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10368171

## Opinion text

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
DIANE M. PORTER, et al., )
) CASE NO. 1:19CV2612
Plaintiffs, )
) JUDGE BENITA Y. PEARSON
v. )
)
CUYAHOGA COUNTY, et al., ) MEMORANDUM OF OPINION
) AND ORDER
Defendants. ) [Resolving ECF No. 3]
Pending is Realigned Plaintiff Ohio Bureau of Workers’ Compensation’s (“OBWC”)
Motion to Remand (ECF No. 3) pursuant to 28 U.S.C. § 1447(c) , filed on December 5, 2019.
The Court has been advised, having reviewed the record, the parties’ briefs, and the applicable
law. For the reasons provided below, the Court denies the motion.
I. Factual and Procedural Background
On or about February 13, 2017, Plaintiff Diane M. Porter was a business invitee or
licensee at the property known as the Virgil E. Brown Center located on Superior Avene in
Cleveland, Ohio. She was an occupant and rider of an elevator (allegedly installed, maintained,
controlled, inspected, and/or serviced by Defendant Schindler Elevator Corporation (“Schindler”)
when the door closed on Mrs. Porter as she entered the elevator, causing her to sustain serious
and permanent injuries to her right shoulder, right elbow, chest, right hip, right knee, and
bruising on both her chest and back. See Supplemental Report of Parties’ Planning Meeting and
Discovery Plan (ECF No. 10). The OBWC made certain payments to Mrs. Porter for medical
(1:19CV2612)
treatment and/or lost wages, and claims a right of reimbursement/subrogation from Mrs. Porter
and Schindler.' Plaintiff Joey R. Porter, Mrs. Porter’s husband, brings a claim for loss of
consortium.
On February 12, 2019, Mr. and Mrs. Porter filed suit in the Cuyahoga County, Ohio Court
of Common Pleas, being Case No. CV-19-910926. The Porters brought this action alleging
common law tort claims for personal injury and loss of consortium. Because Mrs. Porter was
working at the time she was injured, she was entitled to and the OBWC did in fact provide
medical treatment and indemnity compensation to her pursuant to Chapter 4123 of the Ohio
Revised Code. As result of paying for medical treatment and making indemnity payments to
Mrs. Porter, the OBWC has presented a claim against both Mrs. Porter and Schindler for the
statutory right of subrogation afforded in Ohio Rev. Code § 4123.931 in the amount of
workmen’s compensation benefits paid or reasonably expected to be paid in the future as a result
of Mrs. Porter’s injuries.
Schindler filed a Notice of Removal (ECF No. 1) to the United States District Court for
the Northern District of Ohio, on the grounds of diversity jurisdiction? on November 8, 2019.

' The OBWC’s subrogation interest is $160,697.77 through January 5, 2020. See
ECF No, 15 at PageID #: 442 n. 1.
> Pursuant to 28 U.S.C. § 1332, Federal District Courts shall have “original
Jurisdiction of all civil actions where the matter in controversy exceeds the sum or value
of $75,000, exclusive of interest and costs, and is between--(1) citizens of different
States.” The OBWC does not dispute that diversity jurisdiction exists.
> All other Defendants had been dismissed while the case was pending in state
court.

(1:19CV2612)
The OBWC then filed the within timely motion to remand, on the grounds that removal is
improper under 28 U.S.C. § 1447(c) because its claims arise under state workmen’s
compensation law.
II. Analysis
A defendant pursuant to 28 U.S.C. § 1441 has the power to remove to a Federal District
Court “[e]xcept as otherwise expressly provided by Act of Congress, any civil action brought in a
State court of which the district courts of the United States have original jurisdiction.” Section
1445(c), 28 U.S.C., provides that “[a] civil action in any State court arising under the workmen’s
compensation laws of such State may not be removed to any district court of the United States.”
There is “a general policy of strictly limiting diversity jurisdiction in cases involving state
worker’s compensation law; for this reason, courts have generally read [§ 1445] quite broadly.”
Zurich Am. Ins. Co. v. Gen. Motors Corp., 242 F. Supp.2d 736, 739 (E.D. Cal. 2003) (citing
Jones v. Roadway Exp., Inc., 931 F.2d 1086, 1092 (Sth Cir. 1991) (“Because Congress intended
that all cases arising under a state’s workers’ compensation scheme remain in state court, we
believe that we should read section 1445(c) broadly to further that purpose.”); Hines v Marriott
Int’l, Inc., 246 F. Supp.2d 815, 819 (N.D. Ohio 2002) (O’Malley, J.).
Removal of this action was not improper. Section 1445(c), 28 U.S.C. is not controlling in
the case at bar because the OBWC’s subrogation claim under Ohio Rev. Code § 4123.931 is not
one “arising under the workmen’s compensation laws” of Ohio nor is the right to relief
dependent upon resolution of a substantial question of workmen’s compensation law. That claim
is merely incidental to the primary cause of action alleging common law tort claims for personal

(1:19CV2612)
injury. See Adams v. Frito-Lay, Inc., No. 1:19CV2084, 2020 WL 90753, at *3-4 (N.D. Ohio Jan.
8, 2020) (Boyko, J.) (utilizing the test in Harper v. AutoAlliance Int’l., Inc., 392 F.3d 195 (6th
Cir. 2004),* to deny plaintiff's motion to remand);° see also Darago v. Live Nation
Entertainment, Inc., No. 5:18CV2639, 2019 WL 3082292, at *4 (N.D. Ohio July 15, 2019) (Lioi,
J.) “The Court agrees that... [the OBWC’s] subrogation right is secondary to the primary
dispute: namely, the liability for Darago’s workplace injury”); Winkler v. Win Win Aviation, No.
2:16-cv-629, 2016 WL 8224827, at *2 (S.D. Ohio Dec. 29, 2016) (recommending plaintiff’ □
motion to remand be denied) report and recommendation adopted, No. 2:16-cv-629, 2017 WL
543253 (S.D. Ohio Feb. 9, 2017); Bray v. Automatan, LLC, 167 F. Supp.3d 770, 774 (D. S.C.
2016) (“just because Plaintiff GAA’s lien and subrogation claim touch on South Carolina
Workers’ Compensation Law does not mean that its claim arises under that law for purposes of
28 U.S.C. § 1445(c)”); Spangler v. Sensory Effects Powder Systems, Inc., No. 3:15CV0075, 2015
WL 1505766, at *1 (N.D. Ohio April 1, 2015) (Katz, J.) (the OBWC’s “lien is secondary to the
purpose of the lawsuit”); Lemaster v. Taylor Indus., LLC, No. 11-30-ART, 2011 WL 1577808, at
*3 (E.D. Ky. April 26, 2011) (“Rockwood’s workmen’s compensation subrogation claim does
not change the nature of this case because it is a derivative of the plaintiff's non-worker’s

* “A civil action arises under a state workmen’s compensation law when either
(1) the workmen’s compensation law created the cause of action or (2) the plaintiff's right
to relief necessarily depends on resolution of a substantial question of workmen’s
compensation law.” /d. at 203.
> Despite the OBWC being represented by the same law firm in both Adams and
the case at bar, the OBWC did not seek reconsideration of Judge Boyko’s decision.

(1:19CV2612)
compensation claim.”); Hartford v. Schindler Elevator Corp., No. 1:09-CV-132, 2009 WL
3246670, at *3 (N.D. Ind. Oct. 6, 2009) (“[I]t is clear that while Plaintiff's subrogation claim
against a third-party tortfeasor for monies paid to an injured employee on behalf of its insured
touches on Indiana worker’s compensation law, it does not arise under those laws for the
purposes of applying 28 U.S.C. § 1445(c).”).
II. Conclusion
Realigned Plaintiff Ohio Bureau of Workers’ Compensation’s Motion to Remand (ECF
No. 3) is denied as the case was properly removed to this Court under 28 U.S.C. § 1441(a) based
on federal diversity jurisdiction granted in 28 U.S.C. § 1332(a)(1).

IT IS SO ORDERED.

March 17, 2020 /s/ Benita Y. Pearson
Date Benita Y. Pearson
United States District Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10368171. Public record. Not legal advice.