Colston v. Cleveland Public Library et al

Filing 1

Notice of Removal from Cuyahoga County Court of Common Pleas, case number Cv 11 772326 with jury demand, Filing fee $ 350, receipt number 0647-5149057.. Filed by Michael Janero, Felton Thomas, Cleveland Public Library, Sharon Tufts. (Attachments: # 1 Exhibit A - State Court Complaint, Docket and Service Information, # 2 Exhibit B - Declaration of Consent to Removal of Melvin H. Abrams, # 3 Exhibit C - Notice of Filing Notice of Removal, # 4 Civil Cover Sheet) (Toth, K.)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
MARY JANE COLSTON,

Plaintiff,
v.
CLEVELAND PUBLIC LIBRARY, et al.
Defendants.

:
:
:
:
:
:
:
:
:
:
:

CASE NO. 1:12-cv-204
JUDGE

DEFENDANTS’ NOTICE OF REMOVAL
Pursuant to 28 U.S.C. Sections 1331, 1441(b), and 1446, Defendants Cleveland Public
Library (“CPL”), Felton Thomas (“Thomas”), Michael Janero (“Janero”) and Sharon Tufts
(“Tufts”) (collectively, “Defendants”) hereby remove to this Court the action brought by Plaintiff
Mary Jane Colston (“Plaintiff”) in the Cuyahoga County Court of Common Pleas, styled Mary
Jane Colston v. Cleveland Public Library, et al., Case No. CV-11-772326 (the “State Action”).
In support of this Removal, Defendants state as follows:
1.

On or about December 28, 2011, Plaintiff filed the State Action in the Cuyahoga

County Court of Common Pleas. Defendants were served with the Summons and Complaint, as
follows:
Defendant Cleveland Public Library – January 17, 2012
Defendant Felton Thomas – January 17, 2012
Defendant Melvin Abrams – not yet properly served
Defendant Michael Janero – not yet served
Defendant Sharon Tufts – not yet served

A true and accurate copy of the Complaint, together with the Cuyahoga County Court of Common
Pleas Docket and Service information are attached as Exhibit A. 28 U.S.C. § 1446(a).
2.

Plaintiff appeared and filed a Complaint that asserts a claim for damages for sexual

discrimination and harassment under Title VII of the Civil Rights Act of 1964, as amended by the
Civil Rights Act of 1991 (“Title VII”), 42 U.S.C. § 2000e, et seq., and under Ohio Revised Code
(“R.C.”) Chapter 4112; retaliation; violations of the 5th and 14th Amendments to the United States
Constitution and various common law claims.
The Process, Pleadings and Order Served Upon Defendants
3.

Defendant Cleveland Public Library was first notified of this lawsuit on December

29, 2011 and it was served with a copy of the Summons and Complaint on or about January 17,
2012 via certified mail.
4.

Defendants Sharon Tufts and Michael Janero have not yet been served with the

Complaint but they are represented by the undersigned counsel and have no objection to and
consent to the removal of the State Court Action to this Court.
5.

Defendant Melvin H. Abrams has not been properly served with the Complaint but

he has no objection to and consents to the removal of the State Court Action to this Court. A true
and accurate copy of the Declaration of Consent to Removal of Melvin H. Abrams is attached as
Exhibit B.
Removal is Timely
6.

Pursuant to 29 U.S.C. § 1446(b), Defendants now timely file this Notice of Removal.

This Notice of Removal is timely under 28 U.S.C. § 1446(b) because fewer than thirty days have
elapsed since Defendants were served with a copy of Plaintiff’s Complaint.

2

Foundation for Jurisdiction – Federal Question
7.

The basis for this Court’s jurisdiction is federal question under 28 U.S.C. §1331,

which provides that the district courts shall have original jurisdiction without regard to amount in
controversy of all civil actions arising under the Constitution, laws, or treaties of the United States.
With respect to the Court’s federal question jurisdiction, this action is one over which the district
courts of the United States have original jurisdiction by reason of the fact that the Plaintiff asserts
claims under Title VII that arise under the laws of the United States and under the United States
Constitution. Therefore, under 28 U.S.C. §§1331 and 1441(a) and (b), this lawsuit may be removed
to this Court. With respect to any remaining state law claims Plaintiff asserts in her Complaint,
those claims are all related to the federal claims properly before this Court as they involve the same
actors and arise out of a common nucleus of operative facts. Therefore, this Court may exercise
supplemental jurisdiction over those claims so that all claims between these parties may be heard in
one forum.
Venue is Proper
8.

The United States District Court for the Northern District of Ohio is the district

embracing the place where this action is pending and where the events alleged in the Complaint
purportedly occurred. Therefore, the civil action described above may be removed to this Court
pursuant to 28 U.S.C § 1441(a).
Notice Given
9.

Defendants have filed a true and correct copy of this Notice of Removal with the

Clerk of Courts for the Cuyahoga County Court of Common Pleas, Ohio with the Notice of Filing
Notice of Removal filed therein and served Plaintiff’s attorney, Steven J. Moody, Esq. 28 U.S.C. §

3

1446(d). A true and accurate copy of Defendants’ Notice of Filing Notice of Removal filed with the
Cuyahoga County Court of Common Pleas is attached as Exhibit C.
10.

By filing this Notice of Removal, Defendants do not waive any defenses that may be

available.
11.

Defendants request that this Court take jurisdiction of this action to its conclusion

and to final judgment to the exclusion of further proceedings in the state court, in accordance with
the law.
WHEREFORE, Defendants file this Notice of Removal so that the entire State Action, Case
No. CV-11-772326, now pending in Cuyahoga County Court of Common Pleas, Ohio shall be
removed to this Court for all further proceedings.

Dated: January 27, 2012.

Respectfully submitted,

/s/ Ellen Toth
Thomas H. Barnard (#0001569)
Ellen Toth (#0056176)
LerVal Elva (#0085441)
Ogletree Deakins Nash Smoak & Stewart P.C.
127 Public Square
4130 Key Tower
Cleveland, OH 44114
Ph: 216.241.6100
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]

Attorney for Defendants Cleveland Public
Library, Felton Thomas, Michael Janero and
Sharon Tufts
4

CERTIFICATE OF SERVICE
I hereby certify that on January 27, 2012 a copy of the foregoing was electronically filed
with the Clerk of Court using the CM/ECF system. Notice of this filing will be sent to all parties by
operation of the Court’s electronic filing system. Parties may access this filing through the Court’s
system. Additionally, copies of the foregoing pleadings have been mailed this 27th day of January,
2012, to the following:
Steven J. Moody, Esquire
1370 Ontario Street
Suite 1240
Cleveland, Ohio 44101
Attorney for Plaintiff
Melvin H. Abrams
677 Trebisky Road
Cleveland, Ohio 44143
Defendant
/s/ Ellen Toth
Ellen Toth (#0056176)
Ogletree Deakins Nash Smoak & Stewart P.C.
127 Public Square
4130 Key Tower
Cleveland, OH 44114
Ph: 216.241.6100
Fax: [phone]
[e-mail]

One of the Attorneys for Defendants Cleveland
Public Library, Felton Thomas, Michael Janero
and Sharon Tufts

11540238.1 (OGLETREE)

5