Simone v. City of Cleveland

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

JAMES SIMONE, ) Case No. 1:23-cv-1114

)

Plaintiff, )

) MAGISTRATE JUDGE

v. ) THOMAS M. PARKER

)

CITY OF CLEVELAND, )

) MEMORANDUM OPINION

Defendant. ) AND ORDER

)

Plaintiff James Simone has moved to remand this action to state court (ECF Doc. 8).

Defendant City of Cleveland (“Cleveland”) has moved to dismiss the complaint (ECF Doc. 4).

Simone has also moved for leave to amend the complaint (ECF Doc. 14). The parties have

consented to the jurisdiction of the magistrate judge pursuant to 28 U.S.C. § 636. ECF Doc. 16.

For the reasons that follow, the motion to remand will be GRANTED. Because the court lacks

subject matter jurisdiction, the pending motion to dismiss and motion for leave to amend will be

DENIED without prejudice as MOOT in this proceeding.

I. Background

On April 27, 2023, Simone filed a complaint against Cleveland in the Cuyahoga County

Court of Common Pleas. ECF Doc. 1-2. He asserted three causes of action, listing them in the

heading of the complaint: (i) Intentional Infliction of Emotional Distress (“IIED”); (ii) Breach of

Contract, and (iii) Due Process Violation. ECF Doc. 1-2. On June 2, 2023, Cleveland removed

the case to this court upon a claim of federal question jurisdiction, pursuant to 28 U.S.C.

§§ 1331, 1441, 1446. ECF Doc. 1. Specifically, the notice of removal stated that the complaint

asserted a § 1983 claim for a procedural due process violation. Id. ¶ 6. Simone now moves to

remand the case to the Court of Common Pleas for Cuyahoga County pursuant to 28 U.S.C.

§ 1447, contending that removal was improper because the complaint asserted only state law

claims. ECF Doc. 8.

II. Applicable Law

A. Standard of Review

Under 28 U.S.C. § 1441, a defendant may remove “any civil action brought in State court

of which the district courts have original jurisdiction.” 28 U.S.C. § 1441(a); Caterpillar Inc. v.

Williams, 482 U.S. 386, 392 (1987). Federal courts have original jurisdiction only over civil

actions that arise under the Constitution, laws, or treaties of the United States (federal question

jurisdiction), or that involve parties of diverse citizenship when the amount-in-controversy

requirement is met. See 28 U.S.C. §§ 1331; 1332(a); see also Caterpillar, 482 U.S. at 392.

When a plaintiff moves for remand, the defendant – as the removing party – bears the burden to

establish that federal subject matter jurisdiction exists, and removal was proper. Ahearn v.

Charter Twp. of Bloomfield, 100 F.3d 451, 454 (6th Cir. 1996); see also Eastman v. Marine

Mech. Corp., 438 F.3d 544, 549 (6th Cir. 2006) (“The party seeking removal bears the burden of

demonstrating that the district court has original jurisdiction.”).

Under 28 U.S.C. § 1447(c), a case must be remanded to state court if at any time before

judgment it appears that the federal court to which the case was removed lacks subject matter

jurisdiction. Am. Mar. Officers v. Marine Eng’rs Ben. Ass’n, 503 F.3d 532, 535 (6th Cir. 2007);

see Coyne v. Am. Tobacco Co., 183 F.3d 488, 492 (6th Cir. 1999) (“[I]n a removed action, upon

determination that a federal court lacks jurisdiction, remand to state court is mandatory[.]”).

Because federal courts are courts of limited jurisdiction, “all doubts as to the existence of federal

jurisdiction are resolved in favor of remand.” Laber v. United Steel, Paper & Forestry, Rubber,

Mfg., Energy, Allied Indus. & Serv. Workers Int’l Union, 126 F. Supp. 3d 934, 940 (N.D. Ohio

2015) (citing Coyne v. Am. Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999)); Mays v. City of

Flint, Mich., 871 F.3d 437, 442 (6th Cir. 2017) (“[D]oubts should be resolved against

removal.”)(citations omitted). Federal courts must “scrupulously confine” their jurisdiction,

remanding “all cases in which jurisdiction is doubtful or not absolutely clear.” Ahearn, 100 F.3d

at 454; 29A Fed. Proc., L. Ed. § 69:113.

B. Federal Question Jurisdiction

Cleveland does not contend that there was original diversity jurisdiction under 28 U.S.C.

§ 1332, so this court’s jurisdiction over this matter must be based upon federal question

jurisdiction under 28 U.S.C. § 1331. Whether federal question jurisdiction exists is generally

governed by the “well-pleaded complaint rule,” which provides that such jurisdiction exists

“only when a federal question is presented on the face of the plaintiff's properly pleaded

complaint.” Caterpillar, 482 U.S. at 392; Mitchell v. Lemmie, 231 F. Supp. 2d 693, 699 (S.D.

Ohio 2002) (“In determining whether a court has federal subject matter jurisdiction, the court

ordinarily begins by examining the plaintiff's well-pleaded complaint.”) (citing Metro. Life Ins.

Co. v. Taylor, 481 U.S. 58, 63 (1987)). After “[e]xamining only those allegations which are

properly raised in a well-pleaded complaint, the court must then determine whether the substance

of those allegations raises a federal question.” Taylor v. Anderson, 234 U.S. 74, 75-76 (1914);

see also Warner v. Ford Motor Co., 46 F.3d 531, 533 (6th Cir. 1995) (“[T]he plaintiff may, by

eschewing claims based on federal law, choose to have the cause heard in state court.”). This

rule makes the plaintiff the master of his or her complaint. Thus, if the plaintiff chooses to assert

claims solely under state law, those claims will generally not be recharacterized as a federal

claim for purposes of removal. Loftis v. United Parcel Serv., Inc., 342 F.3d 509, 515 (6th Cir.

2003) (citing Metro. Life Ins. Co., 481 U.S. at 63).

The well-pleaded complaint rule has limited exceptions. See Mikulski v. Centerior

Energy Corp., 501 F.3d 555, 560 (6th Cir. 2007). First, a plaintiff cannot “avoid removal

jurisdiction by artfully casting their essentially federal law claims as state-law claims.”

Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 397 n.2 (1981). Second, federal

jurisdiction still exists vis-a-vis state law claims when federal law “wholly displaces the state-

law cause of action through complete pre-emption.” Beneficial Nat. Bank v. Anderson, 539 U.S.

1, 8 (2003). Third, the substantial-federal-question doctrine provides an exception to the well-

pleaded complaint rule “[when] the vindication of a right under state law necessarily turn[s] on

some construction of federal law.” Franchise Tax Bd. of State of Cal. v. Constr. Laborers

Vacation Tr. for S. California, 463 U.S. 1, 9 (1983). Under this doctrine, federal jurisdiction

exists when “a state-law claim necessarily state[s] a federal issue, actually disputed and

substantial, which a federal forum may entertain without disturbing a congressionally approved

balance of federal and state judicial responsibilities.” Grable & Sons Metal Prods., Inc. v. Darue

Eng’g & Mf’g, 545 U.S. 308, 310 (2005).

III. Analysis

The crux of Cleveland’s argument that removal was proper relies on its contention that

the complaint asserted a federal claim under Count III: a violation of procedural due process

based on Simone receiving a deficient Loudermill1 hearing before his employment was

terminated. ECF Doc. 10 at 3-4. Simone argues that removal was improper because his

complaint asserted only state law claims; and, therefore, remand is required for lack of subject

matter jurisdiction. ECF Doc. 8 at 1-4. Simone asserts that he is not pursuing any federal claims

and argues that: (i) the complaint did not assert a § 1983 claim, nor any violation of the United

1 Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985).

States Constitution; and (ii) the complaint’s references to Loudermill were meant to provide

context and were not for the purpose of asserting a § 1983 claim. Id. at 2-3.

The parties’ dispute regarding this court’s subject matter jurisdiction centers on whether

Simone’s “due process violation” claim is purely a state law claim or if it actually raises a federal

question. See generally ECF Docs. 8, 10. However, because the court has an independent

obligation to analyze its own subject matter jurisdiction sua sponte, it has also considered the

first two counts of the complaint and finds that Simone’s claims for IIED and breach of contract

are state law claims that do not implicate this court’s federal question jurisdiction.2 See, e.g.,

Slaughter v. Reg’l Acceptance Corp., No. 2:20-cv-01888, 2020 U.S. Dist. LEXIS 234729, at *8

(S.D. Ohio Dec. 14, 2020) (finding that “neither of the primary bases of subject matter

jurisdiction is presented” in a claim for breach of contract); Nelson v. Wal-Mart Stores, Inc., No.

C2-97-956, 2002 U.S. Dist. LEXIS 23543, at *22 (S.D. Ohio Oct. 31, 2002) (district court

declining to exercise jurisdiction for plaintiff’s common law claim of intentional infliction of

emotional distress); Mitchell v. Lemmie, 231 F. Supp. 2d 693, 696-97 (S.D. Ohio 2002)

(remanding to state court a suit involving “state law” breach of contract and intentional infliction

of emotional distress claims).

The court now turns to the heart of the matter: whether Simone’s due process violation

claim (Count III) implicates this court’s federal question jurisdiction. On the face of the

complaint, Count III does not explicitly state whether it is asserted under state due process law or

under federal due process law, thereby creating ambiguity as to whether Simone brings a federal

cause of action that would permit this court to exercise federal question subject matter

jurisdiction under § 1331. Cleveland argues that Simone brought a federal due process claim, as

2 The extent of which the breach of contract claim implicates Loudermill, is irrelevant because, as

explained further below, Loudermill informs Ohio law.

evidenced by the complaint’s repeated citations throughout Count III to Loudermill, a federal

case involving a claimed violation of federal due process rights. ECF Doc. 10 at 2. In

Loudermill, the Supreme Court addressed the issue of whether two boards of education deprived

their employees, one of which was a security guard, of their constitutional due process rights by

not affording them the opportunity to respond to the charges underlying their respective

terminations. 470 U.S. at 535-37. The Supreme Court found for the employees and held that,

before termination, a “tenured public employee is entitled to oral or written notice of the charges

against him, an explanation of the employer’s evidence, and an opportunity to present his side of

the story.” Id. at 546. While Cleveland is correct that Loudermill was a federal case involving

due process protections under the United States Constitution, that is not dispositive of the

determination of whether federal subject matter jurisdiction exists.

The Sixth Circuit has directed district courts to consider the context of any federal

references in pleadings in order to “fairly ascertain” whether a particular reference to “due

process” was intended to invoke a federal cause of action. Warthman v. Genoa Twp. Bd. of

Trustees, 549 F.3d 1055, 1063-64 (6th Cir. 2008) (finding removal unreasonable when based on

isolated pleading references to the Fourteenth Amendment); see also Rossello-Gonzalez v.

Calderon-Serra, 398 F.3d 1, 10-11 (1st Cir. 2004) (emphasizing the absence of any explicit

reference to the United States Constitution in a complaint as a basis for denying federal subject

matter jurisdiction when the complaint merely referenced “due process” and “equal protection”).

When read in isolation, Count III could be interpreted to assert a federal due process claim.

However, when Count III is considered in the context of the entire complaint, the issue is less

clear. The court notes that: (i) the complaint contains no reference to the United States

Constitution; (ii) Counts I and II assert purely state law claims; and (iii) Count III specifically

does not refer to the federal constitution or any other federal law. ECF Doc. 1-2 at 3-6. It is also

notable that Simone, who was represented by counsel, never cited § 1983 anywhere in the

complaint. Warthman, 549 F.3d at 1062-63 (“[T]he omission of a reference to § 1983 in a

carefully drafted complaint filed by a plaintiff represented by counsel should have provided the

[defendant] with notice that [the platiniff’s] reference to the Due Process Clause was not

intended to raise a federal cause of action.”).

Moreover, the mention of Loudermill could support a due process claim under the Ohio

Constitution. In Ohio state courts, Loudermill is often used as the basis for due process claims

under both Ohio and federal law. “The [due process] section in the Ohio Constitution has been

construed by the Ohio Supreme Court as providing substantially the same safeguards as the

[F]ourteenth [A]mendment of the United States Constitution.”3 Winfield v. Soc’y Nat. Bank, 845

F.2d 328 (6th Cir. 1988). Because Ohio and federal law offer virtually the same due process

protections, Ohio courts will look to the decisions of the United States Supreme Court to

interpret Ohio’s Due Process Clause. State ex rel. Heller v. Miller, 399 N.E.2d 66, 67 (Ohio

1980); see, e.g., State ex rel. Robinson v. Dayton, 2012-Ohio-5800, ¶¶ 20-21, 984 N.E.2d 353,

359 (Ohio Ct. App. 2012) (citing Loudermill when discussing the violation of due process rights

under the Ohio Constitution). Because Loudermill is consistently used as support for due

process claims under the Ohio Constitution, citation to Loudermill is consistent with the assertion

of a state law due process claim and does not necessarily imply a federal law claim.

Finally, Simone’s motion to remand clarifies that “he is not pursuing ANY federal claims

in this lawsuit.” ECF Doc. 8 at 1 (emphasis in original). In special circumstances, courts have

looked to a plaintiff’s post-removal clarification in the face of ambiguities even though

3 Compare U.S. Const. amend. XIV, with Ohio Const. Article I, Section 16; see also Peebles v. Clement,

63 Ohio St. 2d 314, 317, 408 N.E.2d 689, 691 (1980) (“When read in light of Article I Sections 1 and 19,

Article I Section 16 of the Ohio Constitution provides substantially the same safeguards as does the

Fourteenth Amendment.”).

“plaintiff's complaint is controlling in the case of a removal.” St. Paul Mercury Indem. Co. v.

Red Cab Co., 303 U.S. 283 (1938). Post-removal clarification has specifically been used in

assessing federal question jurisdiction. In Fields v. D.C., the district court considered the

plaintiff’s clarification that her ambiguous due process claim was only meant to be under state

law as a factor in its decision to remand. 155 F. Supp. 3d 9, 12 (D.D.C. 2016). And, while not

explicitly referencing plaintiff’s clarification as a factor in its remand decision, the district court

in Sobel v. Cameron mentioned the plaintiffs’ later clarification that all causes of action arose

under state law. 645 F. Supp. 3d 691, 695 (W.D. Ky. 2022). Because Simone’s complaint is

ambiguous, this court finds it proper to consult the plaintiff’s clarification in its determination of

whether removal was proper. Simone’s clarification – that he only intended to assert state law

claims and that his citation to Loudermill was meant to provide context – weighs heavily in favor

of remand.

Furthermore, the court finds that none of the exceptions to the well-pleaded complaint

rule could be applied to justify an exercise of federal subject matter jurisdiction in this case.

First, neither party argues, nor does the record demonstrate, that Simone engaged in artful

drafting. Second, Simone’s due process claim under the Ohio Constitution is not preempted by

federal law. See Rossello-Gonzalez, 398 F.3d at 12 (The United States Constitution “cannot be

said to wholly preempt [a state’s] grant of similar rights under its own Constitution.”). Finally,

for the reasons discussed above, the invocation of Loudermill did not necessarily implicate a

federal due process claim and, therefore, does not require the resolution of a federal issue or

generate a substantial federal question. See Pipino v. Onuska, No. 4:11CV00129, 2011 U.S.

Dist. LEXUS 46130, at *15-16, 23-24 (N.D. Ohio Apr. 29, 2011) (finding that plaintiffs who

relied on federal case law for their state law claims did not allege a federal question or implicate

the substantial federal question doctrine).

Accordingly, with no federal question having been asserted in the complaint, and no

exception to the well-pleaded complaint applicable, Cleveland has not carried its burden to

establish that this court had original subject matter jurisdiction over this action pursuant to 28

U.S.C. § 1441 (a).

IV. Conclusion

Cleveland’s position that that plaintiff's complaint could have pleaded a federal due

process claim did not go far enough. Cleveland bore the burden to establish a sufficient

jurisdictional basis for removing this action from state court, but a review of the entire complaint

does not demonstrate that Simone asserted — or intended to assert — a federal due process cause

of action. Although Cleveland correctly points out that the complaint repeatedly referenced a

federal case as part of the Count II] allegations, Loudermill is a Supreme Court case that informs

both Ohio and federal constitutional claims. Simone’s two other claims are predicated on Ohio

law, and Simone never cited the United States Constitution or § 1983. Thus, read in the context

of the entire complaint, and in light of Simone’s post-remand clarification that he only intended

to bring a due process claim under Ohio law, the court finds Simone’s Count II claim is

predicated only on state law.

Plaintiff's motion to remand (ECF Doc. 8) must be and hereby is GRANTED. This case

is REMANDED to the Cuyahoga County Court of Common Pleas. Because remand is required,

the court will not address the merits of the pending motion to dismiss and motion for leave to

amend. Rather, those motions are DENIED without prejudice as MOOT in this proceeding.

IT IS SO ORDERED.

Dated: December 7, 2023 <P

United States Magistrate Judge