Reimer v. Case Western Reserve University Office of General Counsel, et al
Filing
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Opinion and Order granting Plaintiff's Motion to Remand to State Court and denying Motion for costs (Related Doc # 5 ). Judge Christopher A. Boyko on 10/22/2012.(R,D) Modified text on 10/24/2012 (P,G).
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
HOPE E. REIMER, EXECUTOR, etc.,
Plaintiff,
vs.
CASE WESTERN RESERVE
UNIVERSITY, et al.,
Defendants.
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CASE NO. 1:12CV1475
JUDGE CHRISTOPHER A. BOYKO
OPINION AND ORDER
CHRISTOPHER A. BOYKO, J.:
This matter comes before the Court upon the Motion (ECF DKT #5) of Plaintiff to
Remand and for Costs and Fees. For the following reasons, the Motion is granted in part; the
above-captioned case is remanded to the Cuyahoga County Court of Common Pleas; but fees
and costs are not awarded.
I. FACTUAL BACKGROUND
On April 25, 2012, Plaintiff filed her Complaint in the Cuyahoga County Court of
Common Pleas against Case Western Reserve University (“CWRU”) and University
Hospitals, alleging a wrongful death claim (pursuant to Ohio Revised Code 2125),
negligence, and negligent supervision. Plaintiff’s decedent enrolled in a human research
study entitled: “Self-Management and Cognitive Function in Adults with Cardiac Disease Heart Failure.” On April 26, 2011, a CWRU employee provided Plaintiff’s decedent with the
University Hospital Case Medical Center’s “Consent for Investigational Studies,” which
allegedly failed to disclose that a 2-Minute Step Test would be required or that there was any
risk of physical harm as a result of participation in the study. Plaintiff’s decedent completed a
battery of cognitive tests and the 2-Minute Step Test. Immediately thereafter, he suffered a
fatal cardiac arrhythmia.
On June 11, 2012, Defendant CWRU, with the consent of the University Hospitals
Defendants, removed the captioned case on the basis of federal question jurisdiction. CWRU
contends Plaintiff’s causes of action arise under the federal laws of the United States, namely
45 C.F.R. § 46.101, et seq. Specifically, CWRU refers to ¶ 23 of Plaintiff’s Complaint, which
reads:
The University Hospital’s IRB [Institutional Review Board] had a duty, as
more fully defined by Federal law, to properly evaluate, approve, modify and
monitor the research protocol. Its failure to recognize the risks inherent with
the 2-Minute Step Test, to require inclusion of a description of the test, to
include all reasonably foreseeable risks in the Consent Form, and to assure that
appropriate safeguards were in place to protect human subjects during
performance of the 2-Minute Step Test each constitutes negligence for which
CWRU and University Hospitals are individually and jointly liable.
On July 5, 2012, Plaintiff moved to remand the captioned matter to state court because the
federal regulations, 45 C.F.R. § 46.101, et seq. do not create a private right of action, and
because there is no substantial federal question that has been raised. Plaintiff insists that 45
C.F.R. § 46.109(a) provides that “an IRB shall review and have authority to approve, require
modification, or disapprove all research covered by this policy;” and, thus, merely defines one
element of Plaintiff’s burden (i.e., duty) to establish negligence under state law.
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II. LAW AND ANALYSIS
Notice of Removal and Subject Matter Jurisdiction
28 U.S.C. § 1441 “provides that an action is removable only if it could have initially
been brought in federal court.” Cole v. Great Atl. & Pacific Tea Co., 728 F.Supp. 1305, 1307
(E.D.Ky.1990). Put another way, “[a] civil case that is filed in state court may be removed by
the defendant to federal district court if the plaintiff could have chosen to file there
originally.” Warthman v. Genoa Twp. Bd. of Trs., 549 F.3d 1055, 1059 (6th Cir.2008). The
burden of establishing federal jurisdiction rests upon the removing party, i.e., the defendant.
Alexander v. Elec. Data Sys. 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)). A removed case must be remanded if the
district court lacks subject matter jurisdiction. 28 U.S.C. § 1447(c). In addition, “[w]here
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. Am.
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).
Federal district courts are courts of limited jurisdiction. Bender v. Williamsport Area
Sch. Dist., 475 U.S. 534, 541 (1986) (citing Marbury v. Madison, 1 Cranch 137, 5 U.S. 137
(1803)). “Subject matter jurisdiction is the unwaivable sine qua non for exercise of the
federal judicial power.” Crabtree v. Wal-Mart, 2006 WL 897210 at *1 (E.D.Ky. Apr. 4,
2006), slip copy; Richmond v. Int’l Bus. Machs. Corp., 919 F.Supp. 107 (E.D.N.Y. 1996)
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(citing Fed.R.Civ.P. 12(b)(1)). Want of subject matter jurisdiction may be raised at any time
by the parties or by the Court on its own initiative. Fed.R.Civ.P. 12(b)(1) and 12(h)(3); Clark
v. Paul Gray, Inc., 306 U.S. 583 (1939). “[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 Transp., Inc., 462 F.3d 536, 540 (6th Cir.2006) (citing
Owens v. Brock, 860 F.2d 1363, 1367 (6th Cir.1988)).
In the absence of diversity, a civil action filed in state court may be removed to federal
court only if the claim “arises under” federal law. Beneficial Nat’l Bank v. Anderson, 539
U.S. 1, 6 (2003). “Any civil action of which the district courts have original jurisdiction
founded on a claim or right arising under the Constitution, treaties or laws of the United
States shall be removable without regard to the citizenship or residence of the parties.” 28
U.S.C.
§ 1441(b). Because neither party argues that diversity jurisdiction is present, Plaintiff’s
claims must arise under federal law in order for this Court to have jurisdiction.
Federal district courts “have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States,” 28 U.S.C. § 1331, and any action which
could have originally been brought in federal court may be removed to federal court, 28
U.S.C. § 1441(a). “Since a defendant may remove a case only if the claim could have been
brought in federal court, . . . the question for removal jurisdiction must also be determined by
reference to the ‘well-pleaded complaint.’” Merrell Dow Pharm. Inc. v. Thompson, 478 U.S.
804, 808 (1986). As the Sixth Circuit has repeatedly noted: “[T]he ‘arising under’ gateway
into federal court in fact has two distinct portals: (1) litigants whose causes of action are
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created by federal law, and (2) state-law claims that implicate significant federal issues.”
Hampton v. R.J. Corman R.R. Switching Co., 683 F.3d 708, 711 (6th Cir.2012)(quoting
Eastman v. Marine Mech. Corp., 438 F.3d 544, 550 (6th Cir.2006).
The Court agrees with Plaintiff that the federal regulations relative to protection of
human subjects in research, 45 C.F.R. § 46.101 et seq., do not create a private remedy.
Federal courts have determined that the statute regulating research involving human subjects
does not confer a private right of action. Thomas v. Catlin, No. 04-55778, 141 Fed.Appx.
673, 2005 WL 1943209 (C.A.9 (Cal.) Aug.15, 2005), citing Alexander v. Sandoval, 532
U.S.275, 286 (2001)(“private rights of action to enforce federal law must be created by
Congress.”).
Now, the Court must consider whether Plaintiff’s claim “can pass through the
alternative federal-question-jurisdiction portal: state-law claims that implicate significant
federal issues.” Hampton, 683 F.3d at 712. Plaintiffs may not “avoid removal jurisdiction by
artfully casting their essentially federal law claims as state-law claims.” Mikulski v. Centerior
Energy Corp., 501 F.3d 555, 560 (6th Cir.2007). Furthermore, under the substantial federal
question doctrine, removal is proper where “vindication of a right under state law necessarily
turn[s] on some construction of federal law.” Mikulski, 501 F.3d at 560. The “commonsense
notion [is] that a federal court ought to be able to hear claims recognized under state law that
nonetheless turn on substantial questions of federal law.” Grable & Sons Metal Prods., Inc.
v. Darue Eng’g & Mfg., 545 U.S. 308, 312 (2005). However, federal-question jurisdiction
“demands not only a contested federal issue, but a substantial one.” Id. at 313.
Plaintiff alleges that the IRB “had a duty, as more fully defined by Federal law, to
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properly evaluate, approve, modify and monitor the research protocol;” that “CWRU had a
duty to train its employees on the proper administration of the 2-Minute Step Test;” and that
“CWRU and University Hospitals also had a duty to assure that appropriate safety precautions
were in place to protect human subjects during performance of the 2-Minute Step Test.”
(Complaint at ¶¶ 23, 24, 25). Defendants’ failure to do so allegedly constitutes negligence for
which Defendants are individually and jointly liable. Id. Finding state-law negligence claims
removable, solely because the interpretation and application of federal regulations informs the
finding of the existence of a duty, would “flout, or at least undermine, congressional intent,”
Merrell Dow, 478 U.S. at 812; and would “herald[] a potentially enormous shift of
traditionally state cases into federal courts,” Grable, 545 U.S. at 319. This Court declines to
open that “potential flood gate.”
Defendants have not met their burden of establishing a federal question. See
Alexander, 13 F.3d at 948. Because “[a]ll doubts as to the propriety of removal are resolved
in favor of remand,” the Court grants Plaintiff’s Motion to Remand. See Coyne v. Am.
Tobacco Co., 183 F.3d 488, 493 (6th Cir.1999).
Attorney Fees and Costs
Attorney fees should be awarded “only where the removing party lacked an
objectively reasonable basis for seeking removal.” 3W Int’l., Inc. v. Scottdel, Inc., 722
F.Supp. 2d 934, 936 (N.D.Ohio 2010) (citing Martin v. Franklin Capital Corp., 546 U.S. 132,
141 (2005)). Here, Defendants had an objectively reasonable, though erroneous, basis for
arguing that a substantial federal question warranted the Court’s subject matter jurisdiction.
Plaintiff’s request for an award of attorney fees, expenses and costs is denied.
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III. CONCLUSION
For these reasons, the Court finds that no federal jurisdiction exists under 28 U.S.C.
§ 1441. Thus, Plaintiff’s Motion (ECF DKT #5) to Remand is granted; and the abovecaptioned case is remanded, pursuant to 28 U.S.C. § 1447(c), to Cuyahoga County Common
Pleas Court.
IT IS SO ORDERED.
DATE: 10/22/2012
S/Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
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