Sanborn v. DentalOne Partners, Inc. et al

Filing 18

REPORT AND RECOMMENDATION: It is RECOMMENDED that the Court GRANT Plaintiff's 11 Motion for Remand and REMAND this action to the Franklin County, Ohio, Court of Common Pleas, Civil Division. It is further RECOMMENDED that the Court decline to award Plaintiff attorney's fees and costs pursuant to 28 U.S.C. § 1447(c). Objections to R&R due by 4/20/2018. Signed by Magistrate Judge Chelsey M. Vascura on 4/6/2018. (kpt)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

MELODIE SANBORN,
Plaintiff,
Civil Action 2:17-cv-875
Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Chelsey M. Vascura

v.

DENTALONE PARTNERS INC., et al.,
Defendants.

REPORT AND RECOMMENDATION
Plaintiff, Melodie Sanborn (“Plaintiff”), by and through counsel, brought this action in
state court against Defendants, DentalOne Partners, Inc.; Dr. Zasso & Associates, Inc.; Meckler
Dental Providers, Inc.; Charles J. Zasso, DMD; and Amber Overton (collectively “Defendants”),
asserting a number of state-law claims arising from the termination of her employment. This
matter is before the Undersigned for a Report and Recommendation on Plaintiff’s Motion to
Remand and for Costs Including Attorney’s Fees (ECF No. 11), Defendants’ Brief in Opposition
(ECF No. 16), and Plaintiff’s Reply (ECF No. 17). For the reasons that follow, it is
RECOMMENDED that Plaintiff’s Motion to Remand and For Costs Including Attorney’s Fees
be GRANTED but that the Court decline to award Plaintiff attorney’s fees and costs pursuant to
§ 1447(c).
I.
Before Plaintiff’s termination, Defendants employed her as an Operations Leader at the
DentalWorks of Grove City. As an Operations Leader, Plaintiff was responsible for the quality

of staff and dental services. Plaintiff alleges that during her employment, she observed
violations of the Occupational Safety and Health Administration’s (“OSHA”) laws and
regulations and also violations of the Health Insurance Portability and Accountability Act’s
(“HIPAA”) patient privacy requirements. She further alleges that when she reported these
violations to her supervisor, Defendant Overton, Defendants retaliated against her by taking a
number of adverse actions and ultimately terminating her in April 2017.
On September 5, 2017, Plaintiff filed this action in the Franklin County Court of
Common Pleas. In her Complaint, Plaintiff pleads several state-law claims, including a claim of
conversion, an invasion of privacy claim, a common-law claim of retaliation in violation of Ohio
public policy, a hostile work environment claim, and an emotional distress claim. She premises
her common-law whistleblower claim upon her allegation that Defendants retaliated against her
for complaining about the OSHA and HIPAA violations she observed.
Defendants timely removed the action to federal court under 28 U.S.C. § 1441, asserting
in their Notice of Removal (ECF No. 1) that this case arises, in part, under the laws of the United
States, namely, 29 U.S.C. § 651, et seq. (OSHA) and 42 U.S.C. § 1320d, et seq. (HIPAA).
Defendants specifically reference Plaintiff’s allegations in support of her common-law tort claim
of retaliation in violation of Ohio public policy.
Plaintiff filed the subject Motion to Remand (ECF No. 11), asserting that the absence of a
substantial federal question requires remand. Defendants oppose Plaintiff’s Motion to Remand
and argue as they did in their Notice of Removal that Plaintiff’s claim “arises under” federal law
because she identified federal law as the source of the public policy violated. (ECF No. 16.)

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II.
Defendants based removal on 28 U.S.C. § 1441(a), which provides that “[a]ny 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.” 28 U.S.C.
§ 1441(a). “[T]he scope of removal jurisdiction based on the existence of a federal question
under § 1441(b) is considered to be identical to the scope of federal question jurisdiction under
[28 U.S.C.] § 1331.” Eastman v. Marine Mech. Corp., 438 F.3d 544, 549 (6th Cir.), cert. denied,
549 U.S. 815 (2006) (internal quotation marks and citation omitted). Section 1331 authorizes
federal district courts to exercise original jurisdiction in “all civil actions arising under the
Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331.
“For statutory purposes, a case can ‘aris[e] under’ federal law in two ways.” Gunn v.
Minton, 568 U.S. 251, 257 (2013). First and most commonly, “a case arises under federal law
when federal law creates the cause of action asserted.” Id. (citations omitted). Second, “arising
under” jurisdiction lies in a “special in small category of cases” where a state-law claim raises a
stated federal issue that is “(1) necessarily raised, (2) actually disputed, (3) substantial, and (4)
capable of resolution in federal court without disrupting the federal-state balance approved by
Congress.” Id. at 258. With respect to this second category, the Gunn Court explained that
jurisdiction is proper when these four criteria are met “because there is a ‘serious federal interest
in claiming the advantages thought to be inherent in a federal forum,’ which can be vindicated
without disrupting Congress’s intended division of labor between state and federal courts.” Id.
(quoting Grable & Sons Metal Prod., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 314 (2005)).
“As always, the party invoking federal jurisdiction has the burden to prove that

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jurisdiction.” Glob. Tech., Inc. v. Yubei (Xinxiang) Power Steering Sys. Co., Ltd., 807 F.3d 806,
810 (6th Cir. 2015).
III.
Applying the foregoing, the undersigned finds that Defendants have failed to satisfy their
burden to establish federal question jurisdiction. As set forth above, Defendants rely upon
Plaintiff’s common-law tort claim that he was retaliated against in violation of Ohio public
policy when he complained of Defendants’ violations of OSHA and HIPAA. Contrary to
Defendants’ assertion, however, this claim does not present a substantial federal question.
On this point, the United States Court of Appeals for the Sixth Circuit’s decision in
Eastman is instructive and controls the outcome here. In Eastman, the plaintiff alleged that his
employer took a number of adverse actions and ultimately fired him in retaliation for
complaining about his employer’s violations of federal statutes that prohibit the submission of
fraudulent claims to the military and federal government. 438 F.3d at 547-48. Following his
termination, the plaintiff filed a complaint in state court and alleged that his employer committed
a tort under Ohio law by wrongfully firing him in violation of public policy. Id. at 548. The
employer removed the action, and the plaintiff filed a motion to remand. Id. at 548-49. The trial
court denied the motion to remand and granted summary judgment for the employer. Id. at 549.
On an appeal, the Sixth Circuit vacated the trial court’s entry of judgment and reversed the order
denying remand, holding that “a state-law employment action for wrongful termination in
violation of federal public policy does not present a substantial federal question over which
federal courts may exercise ‘arising under’ jurisdiction under 28 U.S.C. § 1331.” 438 F.3d at
553.
The Eastman Court offered several reasons for its holding. The Court first explained that

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“[a] ‘substantial’ federal question involves the interpretation of a federal statute that actually is in
dispute in the litigation and is so important that it ‘sensibly belongs in federal court.’” Id. at 552
(quoting Grable & Sons, 545 U.S. at 315). The Court found that the meaning of the federal
statutes upon which the plaintiff relied were not in serious dispute, reasoning that “[i]t can hardly
be disputed that submitting fraudulent claims to the federal government would contravene
national policy” and that it could not be denied that whistleblowers should not be punished for
exposing their employers. Eastman, 438 F.3d at 552. Second, the Court found that “Congress’
withholding a private right of action from these statutes is an important signal to its view of the
substantiality of the federal question involved.” Id. (citing Merrell Dow Pharm., Inc. v.
Thompson, 478 U.S. 804, 814 (1986) (“We simply conclude that the congressional determination
that there should be no federal remedy for the violation of this federal statute is tantamount to a
congressional conclusion that the presence of a claimed violation of the statute as an element of a
state cause of action is insufficiently ‘substantial’ to confer federal-question jurisdiction.”)).
Third and finally, the Court concluded that “accepting jurisdiction of [the] state employment
action would be disruptive of the sound division of labor between state and federal courts
envisioned by Congress.” Id. at 553. On this point, the Court reasoned that because “the bulk of
the judicial business” in employment litigation “is conducted in state courts,” the “balance would
be upset drastically if state public policy claims could be converted into federal actions by the
simple expedient of referencing federal law as the source of that public policy.” Id.
The undersigned sees no basis for departing from the Eastman Court’s analysis and
conclusion here. Plaintiff, like the Eastman plaintiff, alleges that his employer took a number of
adverse actions and ultimately fired him in retaliation for complaining about his employer’s
violations of federal statutes. Also like the Eastman plaintiff, Plaintiff brought a state-court

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action alleging that his employer committed a tort under Ohio law by retaliating against him in
violation of public policy. And although the federal statutes upon which Plaintiff relies are
different than those relied upon by the Eastman plaintiff, the statutes at issue here—OSHA and
HIPAA—also do not afford Plaintiff a private right of action. See Hill v. Mr. Money Fin. Co. &
First Citizens Banc Corp., 309 F. App’x 950, 965 (6th Cir. 2009) (“OSHA regulations . . . do not
provide an employee with a private right of action against the employer.”) (internal quotation
marks and citation omitted)); Taylor v. Brighton Corp., 616 F.2d 256, 264 (6th Cir. 1980)
(holding that there is no private right of action to enforce violations of OSHA); Cabotage v. Ohio
Hosp. for Psychiatry, LLC., No. 2:11-CV-50, 2012 WL 3064116, at *3−4 (S.D. Ohio July 27,
2012) (collecting cases agreeing that “HIPAA creates neither an express nor an implied cause of
action for private citizens to enforce its terms”) .
Moreover, the Supreme Court’s recent decision in Gunn further illustrates that no
“substantial” federal questions exists here. In Gunn, the Court found that remand was
appropriate even where the federal issue was actually disputed on the merits and was “the central
point of the dispute.” 568 U.S. at 259, 264. The Court explained that “[t]he substantiality
inquiry under Grable looks . . . to the importance of the issue to the federal system as a whole,”
not just whether the federal issue was significant to the parties. Id. at 260. Here, Defendants
have not argued, and the undersigned cannot discern, how the resolution of any federal issue
presented in this action would be of significance to HIPAA or OSHA jurisprudence.
For these reasons, it is RECOMMENDED that the Court REMAND this action to state
court.
The undersigned declines, however, to recommend an award of attorney’s fees. When a
court determines that the removal of a state-court case to federal court was improper, “the action

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must be remanded, and the order ‘may require payment of just costs and actual expenses,
including attorney fees, incurred as a result of the removal.’” Kent State Univ. Bd. of Trustees v.
Lexington Ins. Co., 512 F. App’x 485, 488–89 (6th Cir. 2013) (quoting 28 U.S.C. § 1447(c)). An
award of costs and fees under § 1447(c) is discretionary, “but subject to the guidance set forth by
the Supreme Court in Martin v. Franklin Capital Corp., 546 U.S. 132, 136–37 (2005).” Id.
(citing Warthman v. Genoa Twp. Bd. of Trs., 549 F.3d 1055, 1059 (6th Cir. 2008). In Martin, the
Supreme Court imposed an objective reasonableness standard, limiting a court’s discretion to
award fees to those cases in which “the removing party lacked an objectively reasonable basis
for seeking removal.” 546 U.S. at 141. The United States Court of Appeals has similarly held
that an award of costs and fees under § 1447(c) “is inappropriate where the defendant’s attempt
to remove the action was fairly supportable, or where there has not been at least some finding of
fault with the defendant’s decision to remove.” Wartham, 549 F.3d at 1059–60 (internal
quotation marks and citation omitted).
The Court does not find an award of attorney’s fees appropriate under the facts and
circumstances presented in this case. It is therefore RECOMMENDED that the Court decline
to award Plaintiff attorney’s fees and costs pursuant to § 1447(c).
IV.
For the reasons set forth above, it is RECOMMENDED that the Court GRANT
Plaintiff’s Motion for Remand (ECF No. 11) and REMAND this action to the Franklin County,
Ohio, Court of Common Pleas, Civil Division. It is further RECOMMENDED that the Court
decline to award Plaintiff attorney’s fees and costs pursuant to 28 U.S.C. § 1447(c).
PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that party may, within fourteen

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(14) 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, 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/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE

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