State of Ohio et al v. Pitts et al
Memorandum of Opinion and Order: This is an action originally filed in state court involving the "rights" to certain city council seats in the City of East Cleveland. Third-party plaintiffs removed this matter based on the contents of the third-party complaint. This Court has an inherent duty to ensure jurisdiction with respect to the cases over which it presides. Having reviewed the notice of removal, the Court finds that federal jurisdiction is lacking. Therefore, the Court sua sponte remands this matter to state court. Judge Patricia A. Gaughan on 3/3/17. (LC,S) re 3
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
Devin Branch, et al.,
Christopher Pitts, et al,
CASE NO. 1:17 CV 385
JUDGE PATRICIA A. GAUGHAN
Memorandum of Opinion and Order
This is an action originally filed in state court involving the “rights” to certain city
council seats in the City of East Cleveland. Third-party plaintiffs removed this matter based on
the contents of the third-party complaint. This Court has an inherent duty to ensure jurisdiction
with respect to the cases over which it presides. Having reviewed the notice of removal, the
Court finds that federal jurisdiction is lacking. Therefore, the Court sua sponte remands this
matter to state court.
Plaintiffs, Devin Branch, Kelvin Erby, and Tracy Udrija-Peters, filed a verified complaint
in the state court of appeals seeking writs of quo warranto and mandamus against defendants,
Christopher Pitts, Earnest Smith, Khadijah Guy, Brandon King, Willa Hemmons, Belinda Kyle,
and Joie Graham. The complaint alleges wrongdoing in connection with the appointment of
certain members to the East Cleveland City Council. According to plaintiffs, defendants are
refusing to acknowledge plaintiffs as duly-appointed city council members and have refused to
remit payment to them for their duties. According to plaintiffs, council properly appointed them
pursuant to the city charter.
The state court of appeals set an expedited briefing schedule to resolve this matter.
Defendants filed a notice of removal thereby removing this matter to this Court. According to
the notice of removal, federal jurisdiction exists based on a third-party complaint that third-party
plaintiffs intended to file in this Court. See, ECF 1 (“Respondents/Third-Party Petitioners are
filing a Third-Party Complaint in this Court; Said action is in part predicated on alleged
violations of Respondents'/Third-Party Petitioners’ [rights arising under federal statutes and the
United States Constituion.]”). At the time third-party plaintiffs removed this action, no thirdparty complaint was pending in state court. Rather, the third-party plaintiffs filed the third-party
complaint in this Court after removing this action from state court.
It is well-settled that this Court must assess jurisdiction at the moment of removal. See,
Wisonsin Dep’t of Corrections v. Schacht, 524 U.S. 381, 390 (1998)(“for purposes of removal
jurisdiction, we are to look at the case as of the time it was filed in state court—prior to the time
the defendants filed their answer in federal court”) citing St. Paul Mercury Indemnity Co. v. Red
Cab Co., 303 U.S. 283, 291 (1938). Here, the notice of removal does not purport to base federal
jurisdiction on any claim arising on the face of the verified complaint filed by plaintiffs in state
court. Rather, the notice of removal expressly invokes the Court’s jurisdiction based on a thirdparty complaint that did not exist at the time the notice of removal was filed. Accordingly, the
Court finds that this action was improvidently removed and remand is required.1
For the foregoing reasons, the Court sua sponte remands this matter to state court.
IT IS SO ORDERED.
/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge
Although the Court need not reach the issue, the Court doubts
whether removal would have been proper even if the third-party
plaintiffs had filed the third-party complaint in state court prior to
removal. The removal statute, i.e., 28 U.S.C. § 1441(a), provides
that “the defendants” may remove a case to this Court. That
phrase is strictly construed. See, e.g., First Nat. Bank of Pulaski v.
Curry, 301 F.3d 456, 462-63 (6th Cir. 2002)(noting with approval
that “[c]ounterclaims, cross-claims, and third-party claims cannot
be the basis for removal” under § 1441(a)). Thus, the Court is not
convinced that defendants, in their capacity as third-party
plaintiffs, could properly remove the matter.
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