Childs v. The Kroger Co.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

TAWAN CHILDS,

Plaintiff,

Case No. 2:20-cv-4216

v. Judge Edmund A. Sargus, Jr.

Chief Magistrate Judge Elizabeth P. Deavers

THE KROGER CO., et al.,

Defendants.

OPINION AND ORDER

This matter is before the Court for consideration of the Chief Magistrate Judge’s October

15, 2020, Report and Recommendation, (ECF No. 15), addressing the Objections to the Report

and Recommendation filed by Defendants The Kroger Co. (“Kroger”), Heather Gray, Patti

Hutchison, and Levi VanReeth (collectively “Defendants”) (ECF No. 16). For the reasons stated

below, the Court OVERRULES Defendants’ Objections to the Report and Recommendation

(ECF No. 16) and ADOPTS the October 15, 2020, Report and Recommendation. (ECF No. 15).

The above-captioned case is REMANDED to the Court of Common Pleas for Franklin County.

I.

On December 20, 2019, Plaintiff Tawan Childs (“Plaintiff”) filed a Complaint against

Defendants in the Franklin County, Ohio Court of Common Pleas. (ECF No. 2). The case was

docketed as Case No. 19CV-12-10192 and assigned to Judge O’Donnell. (ECF No. 1 at 1–2).

Plaintiff asserted numerous claims, all under Ohio law, including disability and race

discrimination; retaliatory discrimination; wrongful termination in violation of public policy;

aiding, abetting, and inciting of discrimination; and defamation. (ECF No. 2 at 15–19).

On August 6, 2020, without the knowledge or assistance of his counsel, (Mot. to Withdraw

at ⁋ 2, ECF No. 6), Plaintiff submitted a four-page memorandum (“Memorandum”) to the state

court. (ECF No.1-2). Twelve days later, on August 18, Defendants filed their Notice of Removal

in this Court based on that Memorandum. (ECF No. 1). Defendants contend that through the

Memorandum Plaintiff alleged, for the first time, violations of federal law. (Def. Resp. in Opp. at

2, ECF No. 9). As such, Defendants sought removal, contending that this Court has original

jurisdiction under 28 U.S.C. § 1331.

The Memorandum Plaintiff submitted to the state court concerned his grievance over issues

raised by Kroger and its counsel in his then-recent deposition. (ECF No. 1-2; ECF No. 5 at 2). The

subject line of the Memorandum reads:

Case no. 19CV-12-10192; Improper unethical conduct, state and federal law

violations at deposition hearing on July 20, 2020; Labor Relations; Property Interest

in Union membership, contractual due process under state common Law, Ohio

Constitution and Labor Management Reporting and Disclosure Act, Title I and

La[n]drum-Griffin Congressional Intent of Due process.

(ECF No. 1-2).

The body of the Memorandum further states, in relevant part:

. . . During the recent Deposition in case sub judice, on 7/2/2020, Kroger Co.

improperly raised a stale disclosure issue and reaffirmed their support of Heather’s

false and moot disclosure claim that originated when I was actually a union member

with interest in the membership’s benefits, rights and protections afforded those

with alleged disciplinary violations. But Kroger Co. evaded union rules, illegally

raised this issue 4 years later and two years after I graduated from management

training (while union member during management interviews and training). This

appears to violate Union democracy, collective bargaining, my property interest in

Union membership and contractual due process per Union Constitution, By law of

UFCW 1059 rules and LMRDA (1982) Title I, Section 101(a)(5) which states in

pertinent part: (5) Safeguards Against Improper Disciplinary Act-No member of

any labor organization may be fined, suspended, expelled or otherwise disciplined

except for nonpayment of dues by such organization or by any officer thereof unless

such member has been (A) served with specific written charges; (B) given a

reasonable time to prepare his defense; (C) afforded a full and fair hearing. See,

e.g. 29 U.S.C. Section 411 (a)(5) (1982)

. . . . Your honor . . . my point in communication is this: I was a union member with

Union rights with UFCW Local 1059 after Hire, I paid Union dues for this property

right of membership and benefits; I was same union member during Interview for

Management and while I was in Management Training. The issue of Disclosure is

stale and Kroger waived it. It is improper and moot since they waived background

check on case by case basis but also there were time frames and disciplinary rules

applied to union members for violations. . . . Heather defamed my character by

violating my rights by raising pretextual, stale and moot disclosure issue that

originated when I was a union member. Kroger Co. and Heather through their

attorneys continue to breach my contractual due process rights under Ohio common

law and my due course rights under Ohio Constitution and LMRDA too . . . .

In addition, it would appear that LMRDA does not pre-empt the state court and

legislative regulation in the area of due process and other individual rights of union

members. 29 U.S.C. Section 413 (“Nothing contained in [Title I] shall limit the

rights and remedies of any member of a labor organization under any State or

Federal law or before any court or other tribunal.”)

. . .

For these reasons, Your honor, I request consideration that you subpoena and order

Kroger Co. to produce UFCW Local 1059 Rules in effect between 2014 and 2018;

I request a court review of this and Discovery Conference to inquire into these

ethical issues, state and federal violations even at recent Deposition Hearing on July

20, 2020 stemming from illegal and void termination. Kroger Co. violated my rights

even at Deposition to raise this stale and erroneous issue of Disclosure. I also ask

that you order me reinstated with additional relief because of damages and

emotional distress stemming from Kroger Co. robbery and hostile environment of

Harassment after robbery, racial discrimination and denial of requests of reasonable

accommodations from not only plaintiff but also doctor’s note and

recommendation. See, e.g., Risa L. Lieberwitz, Due Process and the LMRDA: An

Analysis of Democratic Rights in the Union and at the Workplace, 29 B.C.L. Rev.

21 (1987), . . .

Also, see, in general, Board of Regents v. Roth, 408 U.S., 532, 545 (1985); Taylor

v. Favorito, 74 N.E.2d 768, 772 (Ohio App. 1947)(natural justice, right to due

process independent of contracts); Falcone v. Dantinne, 420 F.2d 1157, 1165 (3d

Cir. 1969) (Right to full hearing)

(Id.).

On August 20, 2020, two days after the case was removed to this Court, Plaintiff filed a

pro se Motion to Remand.1 (ECF No. 5). Defendants filed a Response in Opposition, (ECF No.

9), to which Plaintiff replied. (ECF No. 11). The Chief Magistrate Judge reviewed the Plaintiff’s

1 Simultaneously Plaintiff’s counsel moved to withdraw, (ECF No. 6), which this Court granted for good cause

show. (ECF No. 12).

motion and on October 15, 2020, recommended that this Court grant the motion but deny

Plaintiff’s request for sanctions. (ECF No. 15 at 13). The Chief Magistrate Judge reported that the

removing party did not meet the requirements for removal because contrary to the removing

party’s assertion, the Court does not have federal-question jurisdiction. (ECF No. 15 at 7, 12–13).

On October 28, 2020, Defendants timely submitted their objections. (ECF No. 16). Shortly

thereafter Plaintiff responded, (ECF No. 17), to which Defendants replied. (ECF No. 20).

II.

If a party objects within the allotted time to a report and recommendation, 28 U.S.C.

§ 636(b)(1) provides that a district court “shall make a de novo determination of those portions of

the report or specified proposed findings or recommendations to which the objection is made. The

district court may accept, reject, or modify, in whole or in part, the findings or recommendations

made by the magistrate.”

III.

A. The Well-Pleaded Complaint Rule

The Chief Magistrate Judge applied the well-pleaded complaint rule to scrutinize the

Plaintiff’s complaint for a federal claim that would give rise to federal-question subject matter

jurisdiction. (ECF No. 15 at 7–10). Defendants object that the Report and Recommendation should

have examined the Memorandum rather than the Complaint when determining whether federal

question jurisdiction exists. (ECF No. 16 at 1).

Under 28 U.S.C. § 1441, a defendant may remove an action from state to federal court

when the federal district court has “original jurisdiction” over the action. 28 U.S.C. § 1441(a).

Where, as here, the case stated by the initial pleading is not removable, “a notice of removal may

be filed within 30 days after receipt by the defendant . . . of a copy of an amended pleading, motion,

order or other paper from which it may first be ascertained that the case is one which is or has

become removable.” 28 U.S.C. § 1446(b)(3).

Defendants assert that this Court has federal question removal jurisdiction over this case

because the Memorandum is an “other paper” that raised a federal claim and made the case

removable under 28 U.S.C. § 1446(b)(3). The Court notes that “in most cases, when courts look

to [an] ‘other paper’ to ascertain removability, courts are clarifying that diversity jurisdiction has

been established.” Eggert v. Britton, 223 D. App’x 394, 397 (5th Cir. 2007) (unpublished). Even

so, in limited circumstances courts have looked to an “other paper” to clarify that federal question

jurisdiction has been established. Id. at 397.

Generally, though, Courts apply the well-pleaded complaint rule when determining

whether federal question jurisdiction exists. Mikulski v. Centerior Energy Corp., 501 F. 3d 555,

560 (6th Cir. 2007). This is because the plaintiff is the master of the claim and may typically avoid

removal to federal court by exclusively relying on state-law claims. E.g., Loftis v. United Parcel

Serv., Inc., 342 F. 3d 509, 515 (6th Cir. 2003).

When courts in this circuit have looked to other papers as the basis for federal question

jurisdiction, they have been applying the artful-pleading doctrine or the complete-preemption

doctrine, which are exceptions to the well-pleaded complaint rule. Berera v. Mesa Med. Grp.,

PLLC, 779 F.3d 352, 358, 365 (6th Cir. 2015) (deeming the hearing transcript an “other paper”

and applying the artful-pleading doctrine); Peters v. Lincoln Elec. Co., 285 F.3d 456, 466, 467–68

(6th Cir. 2002) (deeming plaintiff’s response to deposition questions an “other paper” and applying

the complete-preemption doctrine). The artful-pleading doctrine is used when plaintiffs attempt to

avoid removal jurisdiction by “artfully casting their essential federal law claims as state-law

claims.” Mikulski, 501 F. 3d at 560 (quoting Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394,

397 n. 2, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981)). The complete-preemption doctrine is used

“when a federal statute wholly displaces the state-law cause of action through complete pre-

emption.” Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 8, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003).

The Report and Recommendation observes that when courts have applied these exceptions

and looked to an “other paper” they have done so to clarify vague claims, but here the complaint

is neither sparse nor vague. The Chief Magistrate Judge reports that in the absence of a need for

clarification, there is no reason to depart from the well-pleaded complaint rule in this case. (ECF

No. 15 at 10) (citing Trotter v. Steadman Motors, Inc., 47 F. Supp. 2d 791, 792 (S.D. Miss. 1999).

Defendants object that absent a need for clarification courts can still depart from the well-

pleaded complaint rule and examine an “other paper” in cases where that paper belatedly attempts

to amend an original complaint to add new claims. (ECF No. 16 at 4–5). However, as will be

addressed in more detail below, it is not at all clear that Plaintiff was making a belated attempt to

amend his original complaint. As the Court cannot conclude that Plaintiff was attempting to amend

his original complaint, the Court need not decide whether a belated amended complaint can create

an exception to the well-pleaded complaint rule. In this case, furthermore, the Court sees no basis

for departure from the well-pleaded complaint rule.

The Court has reviewed the Report and Recommendation and concludes that the Chief

Magistrate Judge correctly applied the well-pleaded complaint rule in this case. As such,

Defendants’ first objection is overruled.

B. The Memorandum

After applying the well-pleaded complaint rule to conclude the Complaint did not raise any

federal claims, the Report and Recommendation nonetheless addressed whether the Memorandum

raised any federal claims. In concluding that it did not, the Chief Magistrate Judge explained that

there was much ambiguity to the Memorandum. Defendants object to this conclusion. They believe

that the Memorandum clearly raised a federal claim, based on the plain language of the

Memorandum as well as its intent. The Court disagrees.

In cases where the clarification of a pleading is necessary, 28 U.S.C. § 1446(b)(3) requires

the “other paper” to contain “solid and unambiguous information” that the case is removable.

Berera v. Mesa Med. Grp., PLLC, 779 F.3d 352, 364 (6th Cir. 2015). The Defendants explain at

length how the language of the Memorandum can be interpreted to raise a federal claim, but they

do not explain why that can be the only reasonable interpretation of the Memorandum.

The Chief Magistrate Judge recognized Defendants’ interpretation of the Memorandum,

but also recognized among other things that:

At the same time . . . Mr. Childs uses language in the Memorandum to reasonably

suggest that he made these references [to federal law] for purposes of objecting to

defense counsel’s line of questioning at his deposition regarding his alleged failure

to disclose his criminal record. While not entirely clear, the Memorandum’s

language also reflects that, to the extent Kroger could have pursued such an issue

against him, Mr. Childs is contending that it should have done so when he was a

union member subject to union due process protections. Mr. Childs asserts that

Kroger’s failure to do so resulted in a “waiver,” making the issue “stale,” “improper

and moot” and, by extension, an inappropriate defense against his case. (See

generally ECF No. 1, Ex. B at p. 1.)

(ECF No. 15 at 11). Having reviewed the Memorandum, the Court agrees with the Chief

Magistrate Judge. The Court concludes that the pro se Memorandum is not “solid and

unambiguous[.]” Berera, 779 F.3d at 364.

The Chief Magistrate Judge also observed that the Memorandum does not set forth the

elements of a claim under the Labor Management Reporting and Disclosure Act (“LMRDA”), and

that an LMRDA claim can only be raised by a union member against his union. (ECF No. 15 at

11–12) (citing Wiggins v. United Food and Commercial Workers Union, Local No. 56, 420 F.

Supp. 2d 357, 365 (D.N.J. 2006), aff’d sub nom. Wiggins v. United Food & Commercial Workers

Union, Local #56, 303 F. App’x 131 (3d Cir. 2008)). Defendants object that this should not have

been considered because whether the Memorandum states a claim upon which relief can be granted

“is not dispositive” to jurisdictional questions. (ECF No. 16 at 3).

Defendants misconstrue the Chief Magistrate Judge’s purpose in making these

observations. The Report and Recommendation does not characterize these observations as

“dispositive,” (Def. Obj. at 3, ECF No. 16), nor does it rely on them primarily. Rather, it considers

these observations relevant to the analysis, and applies them as a buttress to its conclusion that the

Memorandum is ambiguous. The Court finds no error in the inclusion of these observations.

Accordingly, the Defendants’ final objection is also overruled.

IV.

For the reasons stated above, the Court OVERRULES Defendants’ Objections (ECF No.

16) and ADOPTS the October 15, 2020 Report and Recommendation. (ECF No. 15). The above-

captioned case is REMANDED to the Court of Common Pleas for Franklin County. The clerk is

DIRECTED to close this case.

IT IS SO ORDERED.

11/30/2020 s/Edmund A. Sargus, Jr.

DATE EDMUND A. SARGUS, JR.

UNITED STATES DISTRICT JUDGE