Jackson v. Old Dominion Freight Line

Filing 7

REPORT AND RECOMMENDATION that 5 MOTION to Remand be denied. Objections to R&R due by 11/7/2016. Signed by Magistrate Judge Terence P. Kemp on 10/19/2016. (agm)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Dishawn A. Jackson,

:

Plaintiff,

:

v.

:

Old Dominion Freight Line,
Defendant.

Case No. 2:16-cv-977

:

JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
Plaintiff Dishawn A. Jackson filed this action in the
Franklin County, Ohio Court of Common Pleas, asserting claims
against Defendant Old Dominion Freight Line, his former employer.
According to the complaint, Mr. Jackson was fired for allegedly
fighting on company property and creating a hostile work
environment.

He asserts, however, that his firing was motivated

by his use of FMLA leave, and also that he was not given a proper
COBRA notice.

The complaint contains state law claims as well.

Old Dominion removed the case under 28 U.S.C. §1441(b), asserting
in the notice of removal (Doc. 1) that this is a case over which
the federal courts would have original jurisdiction under 28
U.S.C. §1331.

That statute gives United States District Courts

jurisdiction to hear cases “arising under the Constitution, laws,
or treaties of the United States.”

Mr. Jackson has now filed a

motion to remand the case to the state court.

That motion is

referred to the Magistrate Judge for a Report and Recommendation
under Columbus Division Order 14-01(IV)(C)(2).
In his motion to remand, Mr. Jackson argues that he worked
and lived in the same state of which Old Dominion is a resident
and, as a result, removal was improper.
argument.

That is not a valid

“In determining removal jurisdiction under § 1441, as

in determining original ‘arising under’ jurisdiction, federal
courts apply the ‘well-pleaded complaint’ rule, pursuant to which

‘federal jurisdiction exists only when a federal question is
presented on the face of the plaintiff's properly pleaded
complaint.’”

Long v. Bando Mfg. of America, Inc., 201 F.3d 754,

758 (6th Cir. 2000), quoting Caterpillar Inc. v. Williams, 482
U.S. 386, 392 (1987).

Mr. Jackson has pleaded two separate

claims in his complaint which arise directly under federal
statutes; his FMLA retaliation claim arises under the Family
Medical Leave Act, 29 U.S.C. §§2601 et seq., and his COBRA claim
arises under the Comprehensive Omnibus Budget Reconciliation Act
of 1986, 29 U.S.C. §§1161-1666.

Since these claims arise

directly under federal law and appear on the face of the
complaint, there is no question that this case is one over which
a federal court would have jurisdiction under 28 U.S.C. §1331.
What Mr. Jackson appears to be asserting is that if he and
Old Dominion are both citizens or residents of the same state in other words, that there is no diversity of citizenship removal was improper.

However, when a federal question is

involved in a case, it is not necessary for the parties to be
diverse.

See Caterpillar, supra (“Absent diversity of

citizenship, federal-question jurisdiction is required”);
Arrington v. Medtronic, Inc., 130 S.Supp. 3d 1150, 1158 (W.D.
Tenn. 2014)(“even without diversity of citizenship, this Court
may still have jurisdiction over Plaintiffs' claims, if federal
question jurisdiction exists”).

Since there is federal question

jurisdiction here, the removal of the case was proper.

That

being so, it is recommended that the motion to remand (Doc. 5) be
denied.
PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that
party may, within fourteen days of the date of this Report, file
and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made,
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together with supporting authority for the objection(s).

A judge

of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.

Upon proper

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and
Recommendation de novo, and also operates as a waiver of the
right to appeal the decision of the District Court adopting the
Report and Recommendation.

See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

/s/ Terence P. Kemp
United States Magistrate Judge

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