Wayt v. DHSC, LLC, et al

Filing 17

Memorandum Opinion and Order: Plaintiff's motion to remand the case to the Court of Common Pleas of Stark County, Ohio is granted. (Related Doc # 8 ). Judge Sara Lioi on 7/9/2013. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

ANN WAYT,
PLAINTIFF,
vs.

DHSC, LLC, et al.,
DEFENDANTS.

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CASE NO. 5:12-cv-3048
JUDGE SARA LIOI

MEMORANDUM OPINION
AND ORDER

This case was removed to this Court from the Court of Common Pleas of
Stark County, Ohio. Before the Court is plaintiff’s motion to remand the case to state
court. (Doc. No. 8.) Defendants have filed an opposition. (Doc. No. 13.) Defendants also
filed a motion for leave to file instanter supplemental authority for their opposition (Doc.
No. 14), which plaintiff opposed (Doc. No. 15). Plaintiff has not filed a reply to her
motion to remand, nor sought an extension of time to do so, and the period allotted has
passed. The matter is ripe for disposition. For the reasons that follow, plaintiff’s motion
to remand is GRANTED.
I. BACKGROUND
The following factual background consists of the relevant allegations
made by plaintiff in her amended complaint (Doc. No. 1–2) and should not be interpreted
as factual findings of the Court. Plaintiff Ann Wayt (“plaintiff”) was a registered nurse
and former employee of defendant DHSC, LLC (“DHSC”). (Doc. No. 1–2 at ¶ 1.) DHSC
owns and operates general acute care hospitals throughout the United States, including

the Affinity Medical Center (“Affinity”), the facility where plaintiff worked. (Doc. No.
1–2 at ¶¶ 1–2.) Defendants Jason McDonald (“McDonald”) and Rhonda Smith (“Smith”)
were also employed by DHSC at Affinity. (Doc. No. 1–2 at ¶¶ 3–4.)1
Plaintiff began working at Affinity in 1987 and, up until the events
underlying her complaint, had never been disciplined by her employer, always receiving
excellent job performance evaluations. (Doc. No. 1–2 at ¶¶ 9, 11.) Then, in 2012, plaintiff
and a number of other Affinity nurses began efforts to unionize the nurses under National
Nurses United. (Doc. No. 1–2 at ¶ 12.) In retaliation against her support of unionization,
the defendants made numerous “false and scurrilous charges” against plaintiff. (Doc. No.
1–2 at ¶ 13.) Those charges included:
[P]atient neglect (failing to provide nursing care to a hospital patient
throughout plaintiff’s entire work shift), falsification of medical records
(false entries made in patient charts to “cover-up” the aforementioned
patient neglect), sub-standard work, failure to comply with hospital policy,
and violations of the Health Insurance Portability and Accountability Act
(HIPPA) [sic].
(Doc. No. 1–2 at ¶ 13.) DHSC used the charges (which, if proven, would be “criminal in
nature”) “as a pretextual basis” to terminate plaintiff’s employment. (Doc. No. 1–2 at
¶¶ 13–14.)
As a result of the alleged charges, plaintiff filed suit against defendants in
the Stark County Court of Common Pleas on November 6, 2012. (Doc. No. 1–1.) She
filed an amended complaint on December 4, 2012, changing the name of defendant

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Plaintiff has also sued four Jane Doe defendants, who are identified generally as employees of DHSC.
(Doc. No. 1–2 at ¶ 5.)

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Community Health Systems, Inc. to DHSC. (Doc. No. 1–2.)2 Plaintiff presents three
causes of action in her amended complaint: (1) tortious interference with employment
contract; (2) defamation; and (3) intentional infliction of emotional distress; and styles
her pursuit of punitive damages as a fourth.
On December 13, 2012, defendants removed the case to this Court. (Doc.
No. 1.) Plaintiff responded with the subject motion. (Doc. No. 8.)
II. LAW AND ANALYSIS
A. Standard of Review of a Motion for Remand
A defendant may remove to federal court only state court actions that
originally could have been filed in federal court. Caterpillar, Inc. v. Williams, 482 U.S.
386, 392 (1987). As a court of limited jurisdiction, a federal district court must proceed
cautiously in determining that it has subject matter jurisdiction. Musson Theatrical, Inc.
v. Fed. Express Corp., 89 F.3d 1244, 1252 (6th Cir. 1996). The court must give “due
regard” to the power reserved to the states under the Constitution to provide for the
determination of controversies in the state courts. Shamrock Oil & Gas Corp. v. Sheets,
313 U.S. 100, 108–09 (1941). Accordingly, removal statutes must be construed strictly to
promote comity and preserve jurisdictional boundaries between state and federal courts.
Alexander v. Elec. Data Sys. Corp., 13 F.3d 940, 949 (6th Cir. 1994). In addition, the
defendant seeking removal bears the burden of proving the court’s jurisdiction, see
Rogers v. Wal-Mart Stores, Inc., 230 F.3d 868, 871 (6th Cir. 2000), and “[a]ll doubts as

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Paragraph 13 of the amended complaint recites that “Defendant Community Health Systems, Inc., and a
number of individuals who were employed by Defendant” made the charges against plaintiff. This is
apparently a reference to DHSC that was not changed in the process of amending the complaint.

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to the propriety of removal are resolved in favor of remand.” Coyne v. Am. Tobacco Co.,
183 F.3d 488, 493 (6th Cir. 1999). However, defendant need only include in the notice of
removal “a short and plain statement of the grounds for removal . . . .” 28 U.S.C.
§ 1446(a).
B. Federal Question Jurisdiction
Neither side asserts that there is complete diversity between the parties in
this case. Accordingly, this Court has jurisdiction over this case, if at all, based upon the
presence of a federal question. The “well-pleaded complaint” rule governs the presence
or absence of federal question jurisdiction. Caterpillar, 482 U.S. at 392. Federal question
jurisdiction “extends over ‘only those cases in which a well-pleaded complaint
establishes either that federal law creates the cause of action or that the plaintiff’s right to
relief necessarily depends on resolution of a substantial question of federal law,’ in that
‘federal law is a necessary element of one of the well pleaded . . . claims.’” Christianson
v. Colt Indus. Operating Corp., 486 U.S. 800, 808 (1988) (quoting Franchise Tax Bd. of
Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 13, 27–28 (1983)).
“[S]tate courts are generally presumed competent to interpret and apply
federal law.” Mikulski v. Centerior Energy Corp., 501 F.3d 555, 560 (6th Cir. 2007)
(citing Zwickler v. Koota, 389 U.S. 241, 245 (1967)). The plaintiff is the master of her
claim and may avoid federal jurisdiction by relying exclusively on state law. Beneficial
Nat’l Bank v. Anderson, 539 U.S. 1, 12 (2003) (citing Caterpillar, 482 U.S. at 392). In
particular, “a case may not be removed to federal court on the basis of a federal defense,
including the defense of pre-emption, even if the defense is anticipated in plaintiff’s
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complaint, and even if both parties concede that the federal defense is the only question
truly at issue.” Caterpillar, 482 U.S. at 393.
An exception to the well-pleaded complaint rule exists that allows a state
law claim to be removed to federal court “when a federal statute wholly displaces the
state-law cause of action through complete pre-emption.” Beneficial, 539 U.S. at 8
(emphasis added). “When the federal statute completely pre-empts the state-law cause of
action, a claim which comes within the scope of that cause of action, even if pleaded in
terms of state law, is in reality based on federal law.” Id. The Sixth Circuit has noted,
however, that “‘complete preemption’—no matter how powerful when properly present
in a case—is of very limited application: it is a very limited exception to the well-pleaded
complaint rule.” Palkow v. CSX Transp., Inc., 431 F.3d 543, 553 (6th Cir. 2005).
Defendants’ notice of removal indicates that “[a]ll of the causes of action
alleged in the [amended] complaint manifest Plaintiff’s allegation that she was terminated
due to her open support for unionization by National Nurses United.” (Doc. No. 1 at ¶ 7.)
Consequently, defendants’ stated reason for removal is that the National Labor Relations
Act (“NLRA”) deprives state courts of jurisdiction over plaintiff’s complaint. (Doc. No. 1
at ¶ 7.) In their opposition to plaintiff’s motion, however, defendants do not discuss the
NLRA, contending instead that § 301 of the Labor Management Relations Act
(“LMRA”) completely pre-empts plaintiff’s complaint.
1. NLRA Pre-emption
Defendants assert in their notice of removal that this Court has federal
question jurisdiction over plaintiff’s complaint because the NLRA protects plaintiff’s
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alleged conduct and prohibits defendants’ alleged conduct. (Doc. No. 1 at ¶ 7.) This
appears to be an argument that the NLRA completely pre-empts plaintiff’s claims.
While in the end it may turn out that the National Labor Relations Board
(“NLRB”) should determine this dispute, case law is clear that “the NLRA gives rise only
to ‘normal’ [i.e., ordinary or conflict] preemption, rather than ‘complete’ preemption . . .
.” Boggs v. Appalachian Reg’l Heathcare, Inc., Civil Action No. 6:07-399, 2008 WL
269057, at *4 (E.D. Ky. Jan. 30, 2008) (citing Alongi v. Ford Motor Co., 386 F.3d 716,
719–22 (6th Cir. 2004)). “This type of pre-emption requires a court to yield primary
jurisdiction over a given state-law claim to the NLRB, regardless of whether the claim
was originally brought in federal or state court. However, it does not provide a basis for
removal to federal court.” Alongi, 386 F.3d at 723. See also Caterpillar, 482 U.S. at 398
(“The fact that a defendant might ultimately prove that a plaintiff’s claims are pre-empted
under the NLRA does not establish that they are removable to federal court.”)
The unpublished Sixth Circuit decision of McGlone v. Cintas Corp., No.
93-6062, 35 F.3d 566 (table) (6th Cir. Sept. 8, 1994), does not aid defendants. There, the
plaintiff sued her former employer in state court, alleging violations of state statutes. Id.
at *1. The defendant removed to federal court, citing diversity jurisdiction and original
jurisdiction pursuant to the NLRA. Id. The Sixth Circuit noted that removal was proper
on the basis of diversity jurisdiction and eventually dismissed the case on grounds of
conflict pre-emption. Id. at *4. Contrary to defendants’ insinuation in their notice, the
court in McGlone did not evaluate whether the NLRA was also sufficient grounds for
removal, except to state, doubtfully, that “had [defendant] not listed diversity of
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citizenship as a basis for removal, it is not clear that the removal of this case would have
been proper.” Id. at *1 n.3.
Because there is no complete pre-emption under the NLRA, and because
the defense of conflict pre-emption is not a basis for removal to federal court, defendants’
notice of removal fails to contain a viable “short and plain statement of the grounds for
removal[.]”
2. LMRA Pre-emption
In their response in opposition to plaintiff’s motion to remand, defendants
abandon their NLRA rationale, asserting for the first time that plaintiff’s complaint is
completely preempted by § 301 of the LMRA.3
“A defendant cannot argue a new substantive ground as a basis for
removal in opposing remand.” Hahn v. Rauch, 602 F. Supp. 2d 895, 909 (N.D. Ohio
2008) (defendants that claimed complete pre-emption under only LMRA § 301 and
ERISA in their notice of removal could not argue for complete pre-emption under the
NLRA in opposing remand). See also Uppal v. Elec. Data Sys., 316 F. Supp. 2d 531, 536
(E.D. Mich. 2004) (defendant that claimed complete pre-emption under ERISA in its

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Section 301 provides:
Suits for violation of contracts between an employer and a labor organization
representing employees in an industry affecting commerce as defined in this chapter, or
between any such labor organizations, may be brought in any district court of the United
States having jurisdiction of the parties, without respect to the amount in controversy or
without regard to the citizenship of the parties.

29 U.S.C. § 185(a). Neither defendants’ notice of remand nor plaintiff’s complaint mentions a labor
organization in the process of representing employees or any agreement that could even arguably fall
within the ambit of § 301. Both are first mentioned in defendants’ opposition. There is thus no factual
foundation in the original notice of removal for a claim of complete pre-emption under § 301.

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notice of removal could not argue for removal on grounds of diversity jurisdiction in
opposing remand). This is exactly what defendants in the case at bar have attempted to
do, as § 301 of the LMRA is an entirely different jurisdictional ground than §§ 7 and 8 of
the NLRA. Alongi, 386 F.3d at 723; Hahn, 602 F. Supp. 2d at 909–10.4
Accordingly, the Court finds that defendants are barred from asserting
§ 301 as grounds for removal in their opposition.5
III. CONCLUSION
For the foregoing reasons, plaintiff’s motion to remand the case to the
Court of Common Pleas of Stark County, Ohio is GRANTED.
IT IS SO ORDERED.
Dated: July 9, 2013
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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Moreover, although they have not requested to do so, the Court notes that defendants can no longer
amend their notice of removal to assert complete pre-emption under § 301. 28 U.S.C. § 1446(b) provides
that a notice of removal must be filed within 30 days of service upon a defendant. If there are multiple
defendants, that period begins upon service of the final defendant. Brierly v. Alusuisse Flexible Packaging,
Inc., 184 F.3d 527, 533 (6th Cir. 1999). During that 30-day period, the notice of removal may be amended
freely; afterward, however, “the notice may be amended only to set out more specifically the grounds for
removal that already have been stated in the original notice.” Hahn, 602 F. Supp. 2d at 909 n.6. See also
Tech Hills II Assocs. v. Phoenix Home Life Mut. Ins. Co., 5 F.3d 963, 969 (6th Cir. 1993) (holding that
remand is not required where there are technical defects in the notice of removal that a defendant can cure,
even if the defect is cured outside of the 30-day period).
Here, the final defendant to be served, Rhonda Smith, was served on December 8, 2012, (Doc. No. 1 ¶ 2),
over thirty days from the time defendants filed their opposition to plaintiff’s motion to remand. Thus, at this
stage, defendants could only cure technical defects in grounds that were originally stated in their notice, not
argue a new substantive ground.
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The Court expresses no opinion on the merits of defendants’ § 301 theory. Because the supplemental
authority defendants seek to file (Doc. No. 14) addresses solely the merits issue, that authority would not be
helpful to the Court. Therefore, defendants’ motion for leave to file instanter supplemental authority is
DENIED.

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