# Kaylor v. Multi-Color Corporation

> District Court, S.D. Ohio · September 21, 2020

URL: https://www.frixlaw.com/law-library/cases/10376374

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** September 21, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION – CINCINNATI

BRUCE KAYLOR, : Case No. 1:19-cv-999
:
Plaintiff, : Judge Matthew W. McFarland
:
v. :
:
MULTI-COLOR CORPORATION, :
:
Defendant. :
______________________________________________________________________________

ORDER GRANTING IN PART AND DENYING IN PART
MOTION TO REMAND (Doc. 6)
______________________________________________________________________________
This action is before the Court on Plaintiff Bruce Kaylor’s motion to remand to
state court pursuant to 28 U.S.C. § 1445(c) and due to lack of subject matter jurisdiction.
Kaylor initiated this lawsuit in the Clermont County Court of Common Pleas. He
brought claims for illegal retaliation for filing workers’ compensation claims, in violation
of Ohio R.C. 4123.90; age discrimination, in violation of R.C. 4112.02 and 29 U.S.C. § 621
et seq; and disability discrimination, in violation of 42 U.S.C. § 12101 et seq. Defendant
Multi-Color Corporation removed the case to federal court. Kaylor moves this Court to
remand the matter back to state court.
I.
Kaylor’s basis for remand is 28 U.S.C. § 1445(c). That statute reads as follows: “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.” He argues that his
claim of retaliatory discharge under R.C. 4123.90 arises under Ohio’s workers’
compensation laws and, accordingly, § 1445(c) precludes any part of this action being

removed from state court to federal court.
Multi-Color does not deny that the R.C. 4123.90 claim arises under Ohio’s workers’
compensation laws and is thus nonremovable under § 1445(c). But it maintains that §
1445(c) does not provide a basis to remand the entire action to state court. In its view, the
Court should deny the motion to remand to the extent it seeks remand of any claims
besides the nonremovable one. It also contends that nonremovable claims may be

severed and remanded under § 1441(c)(2).
II.
The party removing the action to federal court bears the burden of showing that
the district court has original jurisdiction over the action. Long v. Bando Mfg. of Am., Inc.,
201 F.3d 754, 757 (6th Cir. 2000). Courts construe the removal statute strictly in favor of

state court jurisdiction, Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109 (1941), and
resolve doubts in favor of remand. Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d
527, 534 (6th Cir. 1999).
A.
The starting point of this dispute is Kaylor’s claim for retaliation for filing workers’

compensation claims, pursuant to R.C. 4123.90. Since this action began in state court, the
R.C. 4123.90 claim cannot be removed to federal court if it arises under Ohio’s workers’
compensation laws. 28 U.S.C. § 1445(c). “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.” Harper v. AutoAlliance Int'l, Inc., 392 F.3d 195,

203 (6th Cir. 2004). This Court has addressed several times whether R.C. 4123.90 “arises
under” Ohio’s workers’ compensation laws, and has concluded it does. E.g., Mencer v.
Kraft Foods Glob., Inc., 695 F. Supp. 2d 667, 678 (S.D. Ohio 2010). So the claim arising under
R.C. 4123.90 is clearly not removable to this Court. See 28 U.S.C. § 1445(c).
B.
What about the other claims? Kaylor maintains that, not only does § 1445(c) make

the workers’ compensation claim nonremovable, but it makes the entire action
nonremovable. Yet the jurisdictional standard in § 1441(c)(1) provides that an action
containing nonremovable claims may be removed, if certain conditions are met. Section
1441(c)(1) reads this way:
If a civil action includes—

(A) a claim arising under the Constitution, laws, or treaties of the
United States (within the meaning of section 1331 of this title), and
(B) a claim not within the original or supplemental jurisdiction of the
district court or a claim that has been made nonremovable by statute,

the entire action may be removed if the action would be removable without
the inclusion of the claim described in subparagraph (B).
28 U.S.C. § 1441(c) (emphasis added).
A three-part jurisdictional standard emerges from this text, as it relates to actions
which contain a claim that is statutorily nonremovable. The entire action may be
removed if the action (1) includes a claim that raises a federal question within the
meaning of 28 U.S.C. § 1331; (2) includes a claim that a statute has made nonremovable;
and (3) would be removable without the nonremovable claim.
This action meets that standard. The workers’ compensation claim under R.C.

4123.90 is nonremovable, satisfying the second criterion. The other claims include alleged
violations of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq, and the
Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. These claims raise federal
questions under § 1331, satisfying the first requirement. The federal claims also permit
the action to be removed without the inclusion of the nonremovable claim, see 28 U.S.C.
§ 1441(a), satisfying the third requirement in § 1441(c)(1). Accordingly, the “entire action”

may be removed under § 1441(c)(1).
C.
The workers’ compensation claim, however, remains nonremovable under §
1445(c). Section 1441(c)(2) instructs this Court on what to do when an action contains
both removable and nonremovable claims:

Upon removal of an action described in paragraph (1), the district court shall
sever from the action all claims described in paragraph (1)(B) and shall
remand the severed claims to the State court from which the action was
removed.

28 U.S.C. § 1442(c)(2) (emphases added). The uses of the word “shall” indicates a
mandatory course of action a district court must take: it must sever the nonremovable
workers’ compensation claim from the other claims and remand the severed claim. And,
by natural operation of the words “sever” and “remand,” the Court retains jurisdiction
over the non-severed claims.
Kaylor resists this conclusion, contending that litigating the workers’
compensation claim in state court and the remaining claims in federal court would lead
to inefficiency, duplicative litigation, and potentially inconsistent judgments. While this

may be so, the express provisions of § 1441(c)(2) foreclose this argument and limit this
Court’s discretion. A straightforward reading of § 1441(c) shows that Congress allowed
for the parallel litigation of related claims in both state and federal courts. It is true that
some courts, when remanding nonremovable § 1445(c) claims, have also remanded
claims over which they had original jurisdiction. E.g., Unterberg v. Exxon Mobil Corp., No.
CIV. 14-00181 JMS, 2014 WL 3420779, (D. Haw. July 10, 2014); Horn v. Kmart Corp. , No.

1:06-CV-493, 2007 WL 1138473, at *3 (S.D. Ohio Apr. 16, 2007). But two related themes
distinguish those decisions from this case.
First, in the full-remand cases, the courts’ original jurisdiction generally comes
from diversity, not a federal question. E.g., Mencer v. Kraft Foods Glob., Inc., 695 F. Supp.
2d 667, 678 (S.D. Ohio 2010); Jackson v. Wal-Mart Stores Texas, LLC, 925 F. Supp. 2d 810,

814 (N.D. Tex. 2013). The distinction makes sense—actions eligible for severance under
§ 1441(c)(2) will include federal claims. See 28 U.S.C. § 1441(c)(1)(A). A comparison
between Unterberg—the Hawaii decision on which Kaylor relies—and this case puts the
significance of this distinction on display. In Unterberg, the court held that, since it found
no claim raising a federal question, the prerequisites of § 1441(c)(1) were not met. That

conclusion put the nonremovable claim out of the severing reach of § 1441(c)(2). In this
case, by contrast, there are claims that raise federal questions and satisfy § 1441(c)(1)(A).
So the reasoning in Unterberg does not apply here.
Second, the full-remand cases generally predate the 2011 amendments to § 1441.
E.g., Goble v. City of Brunswick, 491 F. Supp. 2d 722, 724 (N.D. Ohio 2007). Prior to those
amendments, Goble may have supported Kaylor’s position that application of § 1445(c)

(i.e., the inclusion of a nonremovable claim) prevents removal even if there is a federal
claim. Yet this is no longer the correct approach. The question of whether a court should
remand an entire action or just a workers’ compensation claim was “resolved by
Congress's [2011] revision to the removal statutes.” Miley v. Hous. Auth. of City of,
Bridgeport, 926 F. Supp. 2d 420, 428 (D. Conn. 2013). The statute as written now
“mandates that the Court must sever and remand only the non-removable workers'

compensation claim.” Id. Other courts have reached the same conclusion.1
Kaylor raises a fair point that the term “civil action” in § 1445(c) seems to
encompass the entire case and, as such, the inclusion of a workers’ compensation claim
makes the entire case nonremovable. The Sixth Circuit has interpreted “action” to mean
“the entire controversy,” whereas “claim” traditionally refers to a “cause of action.”

1 Pomales v. Lowe's Home Centers, LLC, No. 3:19CV831 (JBA), 2019 WL 6271252, at *1 (D. Conn. Nov. 25, 2019)
(severing and remanding workers’ compensation claim, retaining jurisdiction over other claims); Harris v.
NewRez, LLC, No. 119CV02211STAJAY, 2019 WL 3254800, at *7 (W.D. Tenn. July 19, 2019) (remanding
claims not within court’s supplemental jurisdiction, retaining jurisdiction over federal question claim);
Hank v. Great Lakes Constr. Co., No. 1:16-CV-02104, 2018 WL 4442301, at *11 (N.D. Ohio Aug. 9, 2018)
(recommending severance of a workers’ compensation retaliation claim and retention of remaining state
and federal claims); D.H. ex rel. Harris v. Matti, No. 3:14-CV-732-DJH, 2015 WL 3581125, at *3 (W.D. Ky.
June 5, 2015) (§ 1441(c)(2) “does not allow the Court to remand an entire action to state court. This is
because 28 U.S.C. § 1441(c)(2) would require the Court to sever those claims over which it lacked original
or supplemental jurisdiction and remand only those claims to state court.”); Nicely v. Safeway, Inc., No.
CIV.A. DKC 13-2827, 2013 WL 6552084, at *4 (D. Md. Dec. 12, 2013) (“1441(c) now provides an entirely
separate category of claims that can make a civil action eligible for removal if it includes claims grounded
in federal law: those that have been made nonremovable by statute.”); Lamar v. Home Depot, 907 F. Supp.
2d 1311, 1316 (S.D. Ala. 2012) (partial remand of workers’ compensation claim only); Brown v. K-MAC
Enterprises, 897 F. Supp. 2d 1098, 1102 (N.D. Okla. 2012) (same). See also Carey v. Bank of Am., N.A., 904 F.
Supp. 2d 617, 620 (N.D. Tex. 2012) (“Nonetheless, in the case of federal question jurisdiction, Congress did
provide an exception to this full-civil-action-remand requirement with § 1441(c) which allows for severance
and remand.”).
Philip Carey Mfg. Co. v. Taylor, 286 F.2d 782, 785 (6th Cir. 1961). So it is a valid observation
that “civil action” refers to the entire action, conventionally.

But, if the Court adopted Kaylor’s position here, it would oversubstantiate the
conventional meaning of a term at the cost of failing to apply a statute. This argument
triggers the presumption against ineffectiveness—“the idea that Congress presumably
does not enact useless laws.” United States v. Castleman, 572 U.S. 157, 178 (2014) (Scalia,
J., concurring). See also Antonin Scalia & Bryan A. Garner, Reading Law 63 (2012). The
Sixth Circuit has cautioned against interpretations that render statutory provisions a

“dead letter.” In re Davis, 960 F.3d 346, 354 (6th Cir. 2020) (quoting United States v. Hayes,
555 U.S. 415, 427 (2009)). If § 1445(c) forbade the removal of an entire action when it
includes a claim arising under a state’s workers’ compensation laws, it would be
impossible, in cases like this one with both federal and nonremovable claims, to give
effect to § 1441(c). Such a reading of § 1445(c) would deprive § 1441(c) of “any meaningful

effect” and so merits skepticism. Id.
A better alternative is to attempt a harmonious reading between § 1441(c) and §
1445(c). The role of the judicial branch is to apply statutes as written when their meanings
are clear. “[W]hen two statutes are capable of co-existence, it is the duty of the courts,
absent a clearly expressed congressional intention to the contrary, to regard each as

effective.” Morton v. Mancari, 417 U.S. 535, 551 (1974). Here, § 1445(c) and § 1441(c) “work
in concert.” Miley, 926 F. Supp. 2d at 428. Section 1445(c) clearly prohibits removal of the
workers’ compensation claim arising under Ohio law. And, since this action includes a
statutorily nonremovable claim, we are working squarely within the scope of § 1441(c)(1).
But, § 1441(c)(1) does not say that actions which include state workers’ compensation
claims may never be removed. To the contrary, it provides for their removal, as long as
the civil action includes a claim raising a federal question. Thus, § 1441(c) “expressly
contemplates the exact scenario facing the Court in which a civil action contains both
federal claims and non-removable claims.” Id. at 428-29. In this scenario, § 1441(c)(2)
clearly directs the Court to sever the nonremovable claim from the lawsuit and remand
the severed claim to State court. And, since § 1441(c) as a whole unambiguously permits
removal in this instance and § 1441(c)(2) mandates remand only of nonremovable claims,
the Court retains jurisdiction of the other claims.
As such, the United States Code directs this Court to sever a nonremovable
workers’ compensation claim from a lawsuit and remand the severed claim to the State
court from which it was removed. 28 U.S.C. § 1441(c). The Court applies that provision
here.
IIL.
For the above reasons, the Court GRANTS IN PART AND DENIES IN PART
Kaylor’s motion to remand. The Court SEVERS and REMANDS Kaylor’s claim arising
under R.C. 4123.90 to the Clermont County Court of Common Pleas and RETAINS
JURISDICTION over all remaining claims.
IT IS SO ORDERED.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO

By: —W a WH bub
JUDGE MATTHEW W. McFARLAND

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10376374. Public record. Not legal advice.