J&C Marketing, LLC v. Mason

Filing 7

Opinion and Order. Plaintiffs' Motions to remand (Related doc #'s 5 , 6 ) are granted and case is remanded to Cuyahoga County Common Pleas Court. (H,CM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

J&C MARKETING, LLC., et al.,

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Plaintiffs,
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vs.
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WILLIAM D. MASON, in his capacity as )
Cuyahoga County Prosecutor,
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Defendant.
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CASE NO. 1:12CV1457
JUDGE CHRISTOPHER A. BOYKO
OPINION AND ORDER

CHRISTOPHER A. BOYKO, J.:
This matter comes before the Court upon the Emergency Motion (ECF DKT #5) of
Plaintiff, J&C Marketing, LLC (“J&C”), to Remand and the Emergency Motion (ECF DKT
#6) of Intervening Plaintiffs, Cyber World Entertainment Corp. and A J & N, Inc., to Remand.
For the following reasons, the Motions are granted and the above-captioned Complaint is
remanded to Cuyahoga County Common Pleas Court.
I. BACKGROUND
Plaintiff J&C filed a Verified Complaint against Defendant in Cuyahoga County
Common Pleas Court on June 4, 2012, alleging a claim for declaratory judgment that its
internet sweepstakes cafes are not subject to Ohio’s gambling laws (Revised Code Sections
2915.02, 2915.03, and 2915.04); alleging violation of its commercial free speech rights under
42 U.S.C. § 1983; and seeking to enjoin Defendant from enforcing those laws against
Plaintiff’s operations. Plaintiffs, Cyber World and A J & N were granted leave to intervene
on June 7, 2012. Plaintiffs allege that Defendant’s threat of criminal prosecution forced them

to close their doors, all to their irreparable harm.
On June 5, 2012, Common Pleas Judge Nancy Margaret Russo held a hearing on
J&C’s request for a temporary restraining order. Due to the jurisdictional issues raised, Judge
Russo set a pretrial for June 11, 2012 at 11:00 a.m., and ordered Defendant to respond to the
petition for temporary restraining order or file a writ of prohibition with the Eighth District
Court of Appeals by that date and time. Instead, Defendant filed a Notice of Removal with
this Court on June 8, 2012. Defendant contends that this Court has original jurisdiction
because Plaintiff’s First Amendment violation claims arise under the Constitution and laws of
the United States.
On June 9, 2012, Plaintiff filed its First Amended Verified Complaint for Declaratory
Judgment, Temporary Restraining Order, Preliminary and Permanent Injunctive Relief. (ECF
DKT #4). Plaintiff eliminated its sole federal claim under 42 U.S.C. § 1983. Intervening
Plaintiffs, Cyber World and A J & N, assert that they have never alleged any federal claims
against Defendant. With no remaining federal cause of action in the First Amended
Complaint, Plaintiffs contend that this Court lacks original jurisdiction over the matter; and
consequently, should not exercise supplemental jurisdiction over any state-based claims.
The Court conducted a Telephone Status Conference on the pending motions on June
11, 2012 at 10:45 a.m. After hearing a summary of the parties’ positions, and upon review of
all the pleadings and documents filed, the Court determines that remand is appropriate.
II. LAW AND ANALYSIS
Removal Jurisdiction and Remand
28 U.S.C. § 1441 “provides that an action is removable only if it could have initially
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been brought in federal court.” Cole v. Great Atlantic & Pacific Tea Co., 728 F.Supp. 1305,
1307 (E.D.Ky.1990). The burden of establishing federal jurisdiction rests upon the removing
party, i.e., the defendant. Alexander v. Electronic Data Systems Corp., 13 F.3d 940, 949
(6th Cir.1994). “Concern about encroaching on a state court’s right to decide cases properly
before it, requires this court to construe removal jurisdiction narrowly.” Cole, 728 F.Supp. at
1307 (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109 (1941)). “Where there
is doubt as to federal jurisdiction, the doubt should be construed in favor of remanding the
case to the State court where there is no doubt as to its jurisdiction.” Walsh v. American
Airlines, Inc., 264 F.Supp. 514, 515 (E.D.Ky.1967); see also Breymann v. Pennsylvania, O. &
D. R.R., 38 F.2d 209, 212 (6th Cir.1930).
“[D]efects in subject matter jurisdiction cannot be waived by the parties and may be
addressed by a court on its own motion at any stage of the proceedings.” Curry v. U.S. Bulk
Transport, Inc., 462 F.3d 536, 539 (6th Cir. 2006); Owens v. Brock, 860 F.2d 1363, 1367 (6th
Cir.1988). 28 U.S.C. § 1447 (c) recites in pertinent part that “[i]f at any time before final
judgment it appears that the district court lacks subject matter jurisdiction, the case shall be
remanded.” (Emphasis added).
The Court acknowledges that the Complaint, as originally composed, recited a claim
for federal civil rights violations brought pursuant to 42 U.S.C. § 1983. However, Plaintiff
J&C possessed the right to amend its Complaint once as a matter of course, without leave,
pursuant to Fed.R.Civ.P. 15(a)(1). The filing of the First Amended Verified Complaint, on
June 9, 2012, changed the nature of Plaintiffs’ action. “ A pleading that has been amended
under Rule 15(a) supercedes the pleading it modifies and remains in effect throughout the
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action unless it is subsequently modified. Once an amended pleading is interposed, the
original pleading no longer performs any function in the case.” Broyles v. Correctional
Medical Services, No. 1:07-cv-690, 2010 WL 989711 at *1 (W.D.Mich. Feb.25, 2010)
(quoting 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice &
Procedure § 1476, pp. 556-57 (2nd ed.1990)). “It is well-established that an amended
complaint supercedes an original complaint and renders the original complaint without legal
effect.” In re Atlas Van Lines, Inc., 209 F.3d 1064, 1067 (8th Cir.2000). See also Parry v.
Mohawk Motors of Michigan, Inc., 236 F.3d 299, 306 (6th Cir.2000).
Therefore, once Plaintiff J&C filed its First Amended Verified Complaint on June 9,
2012, as it had the absolute right to do under Rule 15(a), no federal claim remained; and there
remained no basis for the Court to exercise supplemental jurisdiction over any state causes of
action. The District Court has the discretion to remand pendent state-law claims if it would be
inappropriate to retain jurisdiction over the case. Carnegie-Mellon Univ. v. Cohill, 484 U.S.
343, 350 (1988).
Since removal is narrowly construed, and because the Court is obligated to remand an
action if at any time before judgment it appears that subject matter jurisdiction is lacking,
Plaintiffs’ Motions (ECF DKT #5 and ECF DKT #6) are granted, and the above-captioned
case is remanded to Cuyahoga County Common Pleas Court.
IT IS SO ORDERED.

s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
DATED: June 11, 2012
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