Spehar v. City of Mentor

Filing 9

Order signed by Judge James S. Gwin on 9/11/15 granting Plaintiff's motion to remand. This case is remanded to Lake County Court of Common Pleas. (Related Docs. 6 and 8 ) (W,M)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
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MARTIN E. SPEHAR,
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Plaintiff,
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vs.
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THE CITY OF MENTOR,
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Defendant.
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CASE NO. 1:15-CV-1476

ORDER OF REMAND

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:

This is a removed pro se action. Plaintiff Martin E. Spehar filed his complaint in the
Lake County Court of Common Pleas on July 1, 2015, alleging he is bringing “a civil claim
arising out of the defamation of character [he] has suffered from a malicious scheme engaged in
by the City of Mentor, Ohio for purposes of preventing [him] to raise a few chickens on his
property.” (Complt., ¶ 1.) The complaint alleges four causes of action stemming from the
City’s use of Mentor Codified Ordinance 505.13 against him in connection with his chickens:
“defamation”; “tort”; “theft”; and a violation of the Ohio Constitution’s Bill of Rights, “§1.10
Inalienable Rights.”
The plaintiff filed a prior lawsuit arising from the same facts, which the defendants in the
prior case (the City of Mentor, the City Law Director, the City Council President, and Council
Members) removed to this Court on the ground that the complaint alleged constitutional due
process claims in addition to state law claims (including personal injury, conspiracy to deprive

him of his right to farm his property, and theft). Following briefing, this Court dismissed the
plaintiff’s prior action pursuant to Fed. R. Civ. P. 12(b)(6), finding the plaintiff’s claims were
barred by the doctrine of issue preclusion and Heck v. Humphrey, 512 U.S. 477 (1994). See
Spehar v. City of Mentor, et al., Case No. 1: 12 CV 2855, 2013 WL 3190695 (N.D. Ohio June
21, 2013).
On July 27, 2015, the City of Mentor removed this case to this Court on the ground that
the plaintiff’s new complaint also alleges federal constitutional claims, and the City has moved
to dismiss the complaint. The plaintiff, however, has filed a motion to remand. (Doc. No. 6).
The plaintiff contends removal is improper because his complaint in this case alleges only statelaw claims. Defendants contend the plaintiff alleges federal claims because “the Complaint at
page 9 invokes the ‘constitutions of the State and of the United States,’ and at page 11, referring
to the ‘second CAUSE OF ACTION,’ seeks damages for alleged ‘unlawful acts by the
DEFENDANTS [sic], denying the PLAINTIFF Life, Liberty, the right to farm, and Due Process.
. . .’” (Doc. No. 8 at 1.)
This action will be remanded to state court. Under 28 U.S.C. § 1441(a), “any civil action
brought in a State court of which the district courts of the United States have original
jurisdiction, may be removed by the defendant or the defendants, to the district court of the
United States for the district and division embracing the place where such action is pending.”
District courts have original jurisdiction over civil actions that arise under federal law, or that
involve parties of diverse citizenship where the amount in controversy exceeds $75,000. See 28
U.S.C. §§1331; 1332(a). The party seeking removal bears the burden of demonstrating that the
district court has original jurisdiction, and the “‘removal statute should be strictly construed and
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all doubts resolved in favor of remand.’” Eastman v. Marine Mech. Corp., 438 F.3d 544,
549–50 (6th Cir. 2006) (quoting Brown v. Francis, 75 F.3d 860, 864–65 (3d Cir. 1996)).
To support removal on the basis of a federal question, a federal claim must be presented
on the face of the plaintiff’s well-pleaded complaint. Caterpillar Inc. v. Williams, 482 U.S. 386,
392 (1987). “The rule makes the plaintiff the master of the claim; he or she may avoid federal
jurisdiction by exclusive reliance on state law.” Id.
Although the plaintiff’s complaint contains constitutional references, he contends he
alleges only state-law claims, and the only constitutional cause of action he alleges in his
complaint is under the Ohio Constitution. Accordingly, the most reasonable reading of the
plaintiff’s complaint in this case is that it alleges only state, and not federal, constitutional
claims. Moreover, by moving to remand, the plaintiff has effectively abandoned any federal
constitutional claims that might be inferred from his complaint. See Pedder v. City of Syracuse,
Case No. 5: 08 CV 983, 2008 WL 5115023 (N.D. N.Y. Dec. 3, 2008) (remanding removed
action where the complaint contained references to constitutional violations but the plaintiff
asserted he chose to assert only state-law, not federal constitutional claims).
Conclusion
Accordingly, the plaintiff’s motion to remand this case to state court is granted. This
action is hereby remanded to the Lake County Court of Common Pleas.
IT IS SO ORDERED.

Dated: September 11, 2015

s/ James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE
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