# Ferrarini v. Cleveland Metropolitan School District

> District Court, N.D. Ohio · May 5, 2025

URL: https://www.frixlaw.com/law-library/cases/10996215

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** May 5, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

BRANDI FERRARINI, mother and ) CASE NO.: 1:24-cv-01373
Natural Guardian of E.F.P., a minor, )
) JUDGE BRIDGET MEEHAN BRENNAN
Plaintiff, )
)
v. )
)
CLEVELAND METROPOLITAN ) OPINION AND ORDER
SCHOOL DISTRICT, et al., )
)
Defendants. )

Before the Court is Defendants’ Motion to Dismiss Plaintiff’s complaint for lack of
standing under Federal Rule of Civil Procedure 12(b)(1). (Doc. 16.) Plaintiff responded in
opposition (Doc. 17), and Defendants replied (Doc. 18). For the reasons stated herein, Plaintiff
lacks standing to pursue this action. This case is DISMISSED pursuant to Fed. R. Civ. P
12(b)(1) and REMANDED to the Cuyahoga County Court of Common Pleas pursuant to 28
U.S.C. § 1447(c).
I. BACKGROUND
On June 25, 2024, the Cuyahoga County Department of Children and Family Services
(“CCDCFS”) was awarded custody of E.F.P. in a dependency action. (Doc. 16-1 at 169-70.)1
On July 3, 2024, Plaintiff Brandi Ferrarini, mother of E.F.P., a minor, filed a complaint on
E.F.P.’s behalf against Defendants Cleveland Metropolitan School District, Cleveland
Metropolitan School District Board of Education, and Joel Black’s (collectively, “Defendants”)
in the Cuyahoga County Court of Common Pleas. (Doc. 1 at 2.) Plaintiff alleges claims arising
under Title IX of the Education Amendment of 1972, 20 U.S.C. § 1681, and state law. (Id. 2-3.)

1 For ease and consistency, record citations are to the electronically stamped CM/ECF document
and PageID# rather than any internal pagination.
On August 12, 2024, Defendants timely removed the action pursuant to 28 U.S.C. §§ 1441(a)
and 1446. (Id. at 1-3.)
On February 28, 2025, Plaintiff responded to Defendants’ written discovery. (See Doc.
16-1.) Defendants’ Interrogatory No. 10 asked Plaintiff to list any individuals who have
maintained legal custody of E.F.P. since January 1, 2022, to the present. (Id. at 170.) Plaintiff

responded: “Brandi Ferrarini 01/01/2022 through 06/25/2024 . . . Cuyahoga County Department
of Children and Family Services have had temporary custody from late 06/25/2024 to present.”
(Id.) Plaintiff’s response to Interrogatory No. 8 confirmed E.F.P. currently has a pending
dependency case in the Juvenile Division of the Cuyahoga County Court of Common Pleas. (Id.
at 169.) In response to a request to produce documents demonstrating legal custody of E.F.P.,
Plaintiff stated she “has no such responsive documents in her possession.” (Id. at 182.)
On March 5, 2025, Defendants’ counsel notified Plaintiff’s counsel of the potential
implications of Plaintiff not having custody of E.F.P. (Doc. 16-2 at 192.) On March 7, 2025,
Plaintiffs’ counsel responded and provided additional information on the custody matter. (Id. at

193-94.) Plaintiff asserted the loss of custody is temporary and indicated there are efforts to
reunite Plaintiff with E.F.P. (Id.)
On March 14, 2025, Defendants filed this motion, requesting dismissal of Plaintiff’s
claims for lack of standing. (Doc. 16.) Plaintiff responded, agreeing with Defendants’ factual
and procedural recitation, but disagreeing Plaintiff lacks standing. (Doc. 17.) Instead, Plaintiff
asserts she has standing to maintain this action, but if the Court were to find she does not,
remand would be required. (Id.)
II. LAW AND ANALYSIS
A. Standard of Review
A motion to dismiss pursuant to Rule 12(b)(1) challenges a court’s subject matter
jurisdiction. Federal courts are courts of limited jurisdiction and, unlike state trial courts, they do
not have general jurisdiction to review all questions of law. See Ohio ex rel. Skaggs v. Brunner,
549 F.3d 468, 474 (6th Cir. 2008). Instead, they have only the authority to decide cases that the
U.S. Constitution and Congress have empowered them to resolve. Id. Consequently, “[i]t is to
be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the

contrary rests upon the party asserting jurisdiction[.]” Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994) (citations omitted). The plaintiff has the burden of proving
subject matter jurisdiction to survive a motion to dismiss pursuant to Rule 12(b)(1). Madison-
Hughes v. Shalala, 80 F.3d 1121, 1130 (6th Cir. 1996). Lack of subject matter jurisdiction is a
non-waivable, fatal defect. Von Dunser v. Aronoff, 915 F.2d 1071, 1074 (6th Cir. 1990).
Rule 12(b)(1) motions may challenge jurisdiction facially or factually. Fed. R. Civ. P.
12(b)(1); United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). In a facial attack, the
challenger asserts the complaint allegations are insufficient on their face to invoke federal
jurisdiction. Id.; see also In re Title Ins. Antitrust Cases, 702 F. Supp. 2d 840, 884-85 (N.D.

Ohio 2010) (citations omitted). In a factual attack, the challenger disputes the truth of the
allegations that, by themselves, would otherwise invoke federal jurisdiction. Id. A challenge to
subject matter jurisdiction may be considered a factual attack when the attack relies on extrinsic
evidence, as opposed to the pleadings alone, to contest the truth of the allegations. Id.
Here, Defendants present a factual attack to this Court’s jurisdiction. The Court may
therefore consider Plaintiff’s discovery responses and extrinsic evidence on custody of E.F.P.
See Nichols v. Muskingum Coll., 318 F.3d 674, 677 (6th Cir. 2003) (on a factual attack, a district
court may consider evidence outside the pleadings to determine if jurisdiction exists). On a
factual challenge to jurisdiction, there is no presumption of truthfulness in favor of the non-
moving party. U.S. v. A.D. Roe Co., 186 F.3d 717, 722 (6th Cir. 1999).
B. Standing
Defendants assert Plaintiff did not have legal custody of E.F.P. when she filed this action
and still does not have legal custody of E.F.P. (Docs. 16, 18.) CCDCFS has maintained
temporary custody of E.F.P. since June 25, 2024. (Id.) To Defendants, Plaintiff’s lack of

custody means Plaintiff cannot establish standing, so this Court lacks subject matter jurisdiction.
(Id.)
Under Federal Rule of Civil Procedure 17(c)(1)(A), “a general guardian” may sue or
defend on behalf of a minor. The general guardian must meet federal standing requirements set
forth in Article III of the Constitution. The general guardian must also meet prudential standing
requirements, which are “judicially self-imposed limits on the exercise of federal jurisdiction.”
Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004) (citations omitted) (“Elk
Grove”), abrogated on other grounds by Lexmark Int’l, Inc. v. Static Control Components, Inc.,
572 U.S. 118 (2014). To establish prudential standing: “(1) a plaintiff must assert his own legal
rights and interests, without resting the claim on the rights or interests of third parties; (2) the

claim must not be a generalized grievance shared by a large class of citizens; and (3) in statutory
cases, the plaintiff’s claim must fall within the zone of interests regulated by the statute in
question.” McGlone v. Bell, 681 F.3d 718, 728-29 (6th Cir. 2012) (citations on quotations
omitted).
Under the first prudential standing requirement, courts have held a parent cannot
establish prudential standing on behalf of a minor child when that parent does not have legal
custody of the minor child. (Doc. 16 at 156.) In Elk Grove, the Supreme Court held where a
minor child’s mother had exclusive legal custody, the child’s father lacked prudential standing to
bring a federal lawsuit on behalf of the child. 542 U.S. at 14-18. The Sixth Circuit has adhered
to the standing rule recognized in Elk Grove. See Stephens v. Hayes, 374 F. App’x 620, 622 (6th
Cir. 2010) (“Because their parental rights were terminated, Plaintiffs lack standing to pursue any
claim on behalf of their children.”) (citing Elk Grove); Sefa v. Kentucky, 510 F. App’x 435, 438
(6th Cir. 2013) (“Sefa lacks standing to assert claims on behalf of the minor children, as he does
not establish that he has parental rights over them”) (citations omitted); see also Cross v.

Trumbull Cnty. Child. Servs. Bd., No. 4:11CV02393, 2012 WL 2155171, at *1-2, 2012 U.S.
Dist. LEXIS 81624 (N.D. Ohio June 13, 2012) (“When a plaintiff’s parental rights have been
terminated, he no longer has standing to pursue any claim on behalf of his children.”) (citations
and quotations omitted); Chappel v. Hunter, No. 1:23-CV-728, 2024 WL 1307221, at *5, 2024
U.S. Dist. LEXIS 55087 (S.D. Ohio Mar. 27, 2024) (“the state’s temporary custody
determination . . . has deprived [Chappel] of that [next of friend] status necessary for her to assert
her children’s rights.”) (citations and quotations omitted).
Plaintiff asserts there are two relevant exceptions to prudential standing: (1) where the
third party is unlikely to be able to sue absent Plaintiff’s advocacy, and (2) where there is a

commonality of interests between the Plaintiff and the third party. (Doc. 17 at 200-02.) These
exceptions do not apply here. (See Doc. 18 at 215-17.) First, E.F.P. can vindicate her rights
without Plaintiff filing this lawsuit. Because E.F.P. is a minor, the limitations period on her
claims are tolled until she reaches the age of majority. See O.R.C. §§ 2305.16, 3109.01. Second,
the Court is not persuaded Plaintiff and E.F.P. have a commonality of interests because of the
ongoing dependency action. There is a documented conflict between Plaintiff and E.F.P., which
led to CCDCFS being awarded temporary custody of E.F.P.
Plaintiff argues relevant statutes support finding that “temporary custody” is legally
distinct from “legal custody.” (Doc. 17 at 204-07.) To her, this distinction means CCDCFS does
not have legal custody over E.F.P. This argument is unpersuasive.
Under O.R.C. § 2151.353(A)(2)(a), “If a child is adjudicated an abused, neglected, or
dependent child, the court may . . . [c]ommit the child to the temporary custody of . . . [a] public
children services agency.” Under the introductory statement “As used in this chapter,”
“temporary custody” is defined as “legal custody of a child who is removed from the child’s

home, which custody may be terminated at any time at the discretion of the court or, if the legal
custody is granted in an agreement for temporary custody, by the person who executed the
agreement.” O.R.C. § 2151.011(B)(57) (emphasis added). In the same section, “legal custody”
is defined as “a legal status that vests in the custodian the right to have physical care and control
of the child and to determine where and with whom the child shall live, and the right and duty to
protect, train, and discipline the child and to provide the child with food, shelter, education, and
medical care, all subject to any residual parental rights, privileges, and responsibilities . . . .”
O.R.C. § 2151.011(B)(21).
To Plaintiff, the purported differences in these definitional subsections leads to only one

conclusion: she retains parental rights, including the right to sue on her daughter’s behalf.
Plaintiff’s argument, however, ignores that this section defines both “legal custody” and
“temporary custody.” The phrase “legal custody” was included in the definition of “temporary
custody.” The Court assumes the Ohio legislature meant what it stated and that its inclusion of
“legal custody” in the definition of “temporary custody” was intentional. See Beverage Distribs.,
Inc. v. Miller Brewing Co., 690 F.3d 788, 794 (6th Cir. 2012) (“[a] court must read various
provisions of a statute consistently and presume that the legislature intended the entire statute to
have meaning and effect”) (citing Ohio law). Plaintiff has directed this Court to no authority
supporting a different interpretation of the statute. This, critically, is Plaintiff’s burden.
Plaintiff further argues even if CCDCFS has legal custody, Plaintiff still maintains the
ability to bring this lawsuit under her residual parental rights. (Doc. 17 at 206-07.) Under
O.R.C. § 2151.011(B)(50), residual parental rights are defined as “those rights, privileges, and
responsibilities remaining with the natural parent after the transfer of legal custody of the child,
including, but not necessarily limited to, the privilege of reasonable visitation, consent to

adoption, the privilege to determine the child’s religious affiliation, and the responsibility for
support.” Residual parental rights are limited. “A parent who loses legal custody of a child
cannot see his or her child every day, cannot determine the child’s upbringing, education,
discipline, or health, cannot speak to the child freely, and cannot engage in any number of other
activities and decisions in which parents who have legal custody of their child can engage.” In
re C.L., 2022-Ohio-3596, ¶ 13 (12th Dist.) (citing § 2151.011(A)(50)). The recognition of
“residual parental rights, privileges, and responsibilities” does not foreclose custody in the future
and, notably, preserves the parent’s right to petition the Court for a modification of custody at
some later time. In re C.S., 2022-Ohio-2451, ¶ 18 (3d Dist.). But neither Plaintiff’s plan to

petition nor her ongoing efforts to regain custody by exercising parental rights, privileges, and
responsibilities is sufficient to establish Plaintiff’s standing now. Plaintiff has provided this
Court with no case law to support any other conclusion. And again, it is Plaintiff’s burden to do
so.
For these reasons, the Court finds Plaintiff lacks standing to bring this action on E.F.P.’s
behalf. This Court lacks subject matter jurisdiction.
C. Remand
Having found that it lacks subject matter jurisdiction, the Court must now resolve
disposition. Plaintiff argues that remand is the appropriate remedy, not dismissal of the action in
its entirety, as Defendants urge.
Defendants removed this action from the Cuyahoga County Court of Common Pleas.
Under 28 U.S.C. § 1447(c), “If at any time before final judgment it appears that the district court
lacks subject matter jurisdiction, the case shall be remanded.” The Sixth Circuit has established
“the futility of a remand to state court does not provide an exception to the plain and
unambiguous language of § 1447(c).” Coyne v. Am. Tobacco Co., 183 F.3d 488, 496 (6th Cir.
1999); see also Chase Manhattan Mortg. Corp. v. Smith, 507 F.3d 910, 913 (6th Cir. 2007) (“a
district court must remand a removed case if it appears that the district court lacks subject matter
Jurisdiction”). Accordingly, this matter is remanded to the Cuyahoga County Court of Common
Pleas.
I. CONCLUSION
For the reasons stated herein, Defendants’ Rule 12(b)(1) motion is GRANTED as to this
removed federal action. (Doc. 16.) The Court REMANDS this case to the Cuyahoga County
Court of Common Pleas pursuant to 28 U.S.C. § 1447(c).
The Court also notes Plaintiff included juvenile court records with her brief. (Doc. 17 at
211-13.) Pursuant to Shane Grp. Inc. v. Blue Cross Blue Shield of Mich., 825 F.3d 299, 304-06
(6th Cir. 2016) and In re Nat’! Prescription Opiate Litig., 927 F.3d 919, 938-40 (6th Cir. 2019),
the Court seals the last three pages of Plaintiff's brief.

IT IS SO ORDERED.

Date: May 5, 2025 ¢
x J A : MEEHA La ENNAN
UNITED STAT ISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10996215. Public record. Not legal advice.