Berk Enterprises Inc. et al v. Brown et al

Filing 12

Memorandum Opinion and Order Before the Court is Plaintiffs' "Objection to Notice of Removal with Motion to Remand Back to Trumball County Common Pleas Court." ECF No. 6 . Defendants have filed a memorandum in opposition. ECF No. 8 . After reviewing the supporting briefs, and having construed Plaintiffs' filing as a motion to remand, the Court denies the motion for the reasons set forth. Judge Benita Y. Pearson on 12/9/2011. (S,L)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
BERK ENTERPRISES, INC., et al.,
Plaintiffs,
v.
GEORGE D. BROWN, et al.,
Defendants

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CASE NO. 4:11-cv-02119

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION
AND ORDER
[Resolving ECF No. 6]

I. Introduction
Before the Court is Plaintiffs’ “Objection to Notice of Removal with Motion to Remand
Back to Trumball County Common Pleas Court.” ECF No. 6. Defendants have filed a
memorandum in opposition. ECF No. 8. After reviewing the supporting briefs, and having
construed Plaintiffs’ filing as a motion to remand, the Court denies the motion for the reasons set
forth below.
II. Discussion
Plaintiffs’ sole argument for remand is based on 28 U.S.C. § 1441(c) , which provides:
Whenever a separate and independent claim or cause of action within the
jurisdiction conferred by section 1331 of this title is joined with one or more
otherwise non-removable claims or causes of action, the entire case may be
removed and the district court may determine all issues therein, or, in its
discretion, may remand all matters in which State law predominates.

(4:11CV02119)
While Plaintiffs acknowledge that their asserted claims1 against Defendants in the instant case
are premised upon both the U.S. Constitution and the Ohio State Constitution, they contend that
State law predominates as their federal causes of action are only ancillary “in providing a remedy
for the determination of a violation of Plaintiff’s rights under Ohio law.” ECF No. 6 at 3.
Therefore, Plaintiffs argue that pursuant to 28 U.S.C. §1441(c), the Court should exercise its
discretion and remand the entire case to State Court.
The Court finds Plaintiffs’ interpretation of §1441(c) to be in error. Although the
statutory language provides that “the district court . . .in its discretion, may remand all matters in
which State law predominates,” the provision’s language “is best understood as allowing a court
to remand the otherwise non-removable claims rather than a whole case including properly
removed claims arising under federal law.” See Springdale Venture, LLC v. US Worldmeds,
LLC, 620 F. Supp. 2d 810, 813 (W.D. Ky., 2009) (citing Majeske v. Bay City Bd. of Ed., 177
F.Supp.2d 666, 672 (E.D. Mich. 2001) (internal quotations omitted). Thus, contrary to Plaintiffs’
assertion, this provision does not authorize a court to remand a federal question based claim
merely because state law predominates. See Springdale Venture, LLC , 620 F. Supp. 2d 813.
Given that the Court has jurisdiction over Plaintiffs’ claims arising under the U.S.
Constitution, pursuant to 28 U.S.C. §1331, and §1441(c) does not authorize the Court to remand

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Specifically with respect to the federal claims, the Complaint indicates that
Plaintiffs seek redress for violations of the Fifth and Fourteenth Amendments to the U.S.
Constitution, enforceable through the vehicle of 42 USC § 1983. ECF No. 3-1 at 2-8.
Plaintiffs also seeks redress for alleged violations of §§1, 14, 16 of Article I of the Ohio
State Constitution. ECF No. 3-1 at 8.

(4:11CV02119)
such claims, Plaintiffs’ argument that the instant case–including federal question based
claims–warrants remand fails. Plaintiffs’ motion is therefore denied.

IT IS SO ORDERED.

December 9, 2011
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

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