Nittoli v. Mahoning County Engineer

Filing 13

Memorandum of Opinion and Order For the reasons set forth herein, Plaintiff's Motion to Remand, ECF No. 6 , is granted. The case is remanded to the Mahoning County, Ohio Court of Common Pleas forthwith. The Case Management Conference scheduled for 3/22/2017 is cancelled. Judge Benita Y. Pearson on 3/20/2017. (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

PETER NITTOLI,
Plaintiff,
v.
MAHONING COUNTY ENGINEER,
Defendant.

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CASE NO. 4:16CV3047

JUDGE BENITA Y. PEARSON

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

Pending before the Court is Plaintiff’s Motion to Remand. ECF No. 6. For the following
reasons, the Court grants the Motion.
I. Background
Plaintiff brought this age discrimination suit in the Mahoning County, Ohio Court of
Common Pleas. ECF No. 1-1. Plaintiff worked for Mahoning County as a mechanic and truck
driver from December 5, 1994 through February 22, 2016. Id. at PageID #: 6–7, ¶¶ 5–7. At the
time he filed his Complaint, Plaintiff was 51 years old. Id. at PageID #: 6, ¶ 4.
Mahoning County terminated Plaintiff’s employment for using a county truck to plow the
residential street on which he lives. Id. at PageID #: 7, ¶ 8. Plaintiff contends he used the truck
because he needed to retrieve prescribed medication, and that younger employees plowed
residential streets without facing adverse employment action. Id. at PageID #: 7, ¶ 9–10.
Plaintiff argues that he was “discriminated against . . . on the basis of age further to the Age

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Discrimination in Employment Act (“ADEA”) as incorporated in R.C. Chapter 4112.” Id. at
PageID #: 7, ¶ 12. He only alleges a cause of action under Ohio Rev. Code § 4112.14. Id. at
PageID #: 8, ¶ 18.
Defendants removed the case on the basis of federal question jurisdiction, arguing that
Plaintiff’s Complaint sets forth allegations under the Federal Age Discrimination in Employment
Act (“ADEA”). ECF No. 1 at PageID #: 1. Plaintiff moved to remand, arguing that it only
pleaded claims under Ohio Rev. Code § 4112.14. ECF No. 6. Defendant responded. ECF No.
7. Plaintiff did not reply, and the time to do so has passed. L.R. 7.1.
II. Standard of Review
Pursuant to 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
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, see 28 U.S.C. § 1331, or that involve parties of diverse citizenship
and exceed $75,000 in controversy, see 28 U.S.C. § 1332. “The presence or absence of
federal-question jurisdiction is governed by the ‘well-pleaded complaint rule,’ which provides
that federal jurisdiction exists only when a federal question is presented on the face of the
plaintiff’s properly pleaded complaint.” Caterpillar v. Williams, 482 U.S. 386, 392 (1987); see
also Warner v. Ford Motor Co., 46 F.3d 531, 533 (6th Cir. 1995) (“[T]he plaintiff is the master
of the complaint . . . [T]he plaintiff may, by eschewing claims based on federal law, choose to
have the cause heard in state court.”).

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“It is well settled that a case may be said to arise under the Constitution or laws of the
United States whenever its correct decision depends upon the construction of either, or when the
title or right set up by the party may be defeated by one construction of the Constitution or law of
the United States, and sustained by the opposite construction. Otherwise, not.” Shelby Cty.,
Tenn. v. Fairway Homes, Inc., 285 F.2d 617, 618 (6th Cir. 1961). Even if the disputed right
“takes its origin in the laws of the United States,” the claim does not “arise under” federal law
unless “it really and substantially involves a dispute or controversy respecting the validity,
construction, or effect of such a law, upon the determination of which the result depends.” Id.
(quoting Shulthis v. McDougal, 225 U.S. 561, 569 (1912).
III. Discussion
Plaintiff’s age discrimination claim does not arise under federal law. Although Defendant
argues that “merely citing to a federal statute is enough to support removal to federal court,” this
reading of the law is incorrect. Compare ECF No. 7 at PageID #: 30 with Merrell Dow Pharm.,
Inc. v. Thompson, 478 U.S. 804, 807 (1986) (“[a]lthough the constitutional meaning of ‘arising
under’ may extend to all cases in which a federal question is ‘an ingredient’ of the action . . . we
have long construed the statutory grant of federal-question jurisdiction as conferring a more
limited power[.]” (citations omitted)). Instead, a court must reference the well-pleaded complaint
to determine whether it requires interpretation of federal law. Shelby Cty., 285 F.3d at 619.
In this case, Plaintiff’s only cause of action is one under Ohio Rev. Code § 4112.14,
Ohio’s Age Discrimination statute. Although Ohio has incorporated the Federal ADEA into its
own age discrimination statute, this incorporation does not mean that every claim under the Ohio

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Age Discrimination statute creates a federal question. Resolution of Plaintiff’s claims requires
interpretation of Ohio’s statute alone.
In support of federal jurisdiction, Defendant cites Nenninger v. Zanesfield Rod & Gun
Club, No. 2:13-cv-1004, 2013 WL 6198309 (S.D. Ohio Nov. 27, 2013) (magistrate judge’s
report and recommendation) adopted and affirmed by No. 2:13-cv-1004, 2014 WL 28867 (S.D.
Ohio Jan. 2, 2014). In Nenninger, the plaintiff filed an age discrimination complaint against his
employer. Count Three of his complaint alleged that his employer’s conduct “amounts to a
violation of Ohio R.C. 4112.02 et seq. and the [F]ederal Age Discrimination in Employment Act,
29 U.S.C. 621 et seq.” Nenninger, 2013 WL 6198309, at *1. The Southern District of Ohio first
noted that “[a] complaint arises under federal law if it: (1) states a federal cause of action . . . .”
Id. at *2 (quoting Ohio ex rel. Skaggs v. Brunner, 629 F.3d 527, 530 (6th Cir. 2010)). The court
then found that Nenninger “expressly invokes the federal Age Discrimination in Employment
Act and seeks relief available under that statute.” Id.
Unlike Nenninger, Plaintiff did not “expressly invoke” the ADEA. Although Plaintiff
mentioned the federal statute in his pleadings, he listed only the Ohio Age Discrimination statute
under “Causes of Action.” Similarly, he limits the relief sought to that available under the Ohio
statute, rather than the broader relief afforded by the ADEA. In contrast, Nenninger expressly
accused his employer of violating the ADEA, and listed the Federal Act as a cause of action.
Because the matter at issue does not concern a federal question, and there is no indication
that the parties are diverse or that the case would otherwise satisfy diversity jurisdiction, the
Court does not have subject-matter jurisdiction over the matter.

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IV. Conclusion
For the foregoing reasons, the Court grants the Motion to Remand. The case is remanded
to the Mahoning County, Ohio Court of Common Pleas forthwith. The Case Management
Conference scheduled for March 22, 2017 is cancelled.

IT IS SO ORDERED.

March 20, 2017
Date

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

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