Dayton Public Schools v. Cummings-Elmore et al

Filing 13

REPORT AND RECOMMENDATION1 THAT: (1) PLAINTIFFS MOTION FOR REMAND (DOC. 9 ) BE GRANTED; (2) THIS CASE BE REMANDED TO THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO; AND (3) THIS CASE BE TERMINATED ON THE COURTS DOCKET. Objections to R&R due by 1/2/2018. Signed by Magistrate Judge Michael J. Newman on 12/19/17. (kma)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
DAYTON PUBLIC SCHOOLS,
Plaintiff,

Case No. 3:17-cv-338

vs.
LISA CUMMINGS-ELMORE, et al.,

District Judge Thomas M. Rose
Magistrate Judge Michael J. Newman

Defendants.
______________________________________________________________________________
REPORT AND RECOMMENDATION1 THAT: (1) PLAINTIFF’S MOTION FOR
REMAND (DOC. 9) BE GRANTED; (2) THIS CASE BE REMANDED TO THE
COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO; AND (3) THIS
CASE BE TERMINATED ON THE COURT’S DOCKET
______________________________________________________________________________
This civil case is before the Court on Defendant Lisa Cummings-Elmore’s (“Cummings
Elmore”) notice of removal (doc. 6) and the motion to remand filed by Plaintiff Dayton Public
Schools (“DPS”). Doc. 9. Cummings-Elmore filed an opposition to DPS’s motion to remand
(doc. 10) and, thereafter, DPS filed a reply memorandum (doc. 12). The Court has carefully
reviewed all of the foregoing and DPS’s motion to remand is now ripe for decision.
I.
This civil case arises out of an employment relationship between DPS and CummingsElmore. See generally docs. 1-2. Cummings-Elmore began employment with DPS as a social
studies teacher in August 2013. Doc. 1-2 at PageID 42. In that capacity, Cummings-Elmore was
a member of the Dayton Education Association (“DEA”), a collective bargaining unit
representing DPS teachers. Doc. 1-2 at PageID 43.

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Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendation.

In March 2016, Cummings-Elmore contacted the Dayton Police Department making
claims and allegations against her immediate supervisor. Id. Immediately thereafter, DPS
placed Cummings-Elmore on paid administrative leave pending the completion of an
investigation into her allegations. Id. While on paid administrative leave, Cummings-Elmore
allegedly accepted another teaching position with a different school district and began teaching
in that school district in April 2016. Id. at PageID 44-45. Upon learning that Cummings-Elmore
was teaching in another school district, DPS considered Cummings-Elmore to have
constructively resigned her position with DPS, and the DPS school board approved her
constructive resignation in June 2016. Id.
Soon after the school board accepted Cummings-Elmore’s constructive resignation, DEA
filed grievances on behalf of Cummings-Elmore, which were originally denied. Id. at PageID
46. DEA then requested that such grievances be arbitrated pursuant to the terms of the parties’
collective bargaining agreement (“CBA”). Id. Following arbitration hearings in April and May
2017, the arbitrator issued an opinion and award in favor of DEA and Cummings-Elmore. Id.
On August 27, 2017, DPS filed this action in the Court of Common Pleas of Montgomery
County, Ohio (“the Common Pleas Court”) seeking, pursuant to Ohio Rev. Code §§ 2711.10 and
2711.13, to vacate the arbitration award. Id. at PageID 41-61. DPS argues that the arbitrator’s
award should be vacated because: (1) the award violates Ohio public policy; and (2) the
arbitrator exceeded his authority given to him under the terms of the CBA between the parties.
Doc. 1-2 at PageID 46-61.
On September 28, 2017, Cummings-Elmore removed the case to this Court. Doc. 1.
Cummings-Elmore argues that removal is proper because the basis of her claims against DPS
present a federal question, i.e., whether the termination of her employment violated due process

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and amounted to retaliation for exercising her rights under the First Amendment. Doc. 1-1 at
PageID 6-7. DPS now seeks to remand the case to the Common Pleas Court. Doc. 9.
II.
“[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 the 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). Where, as here, the removing defendant alleges that
the Court possesses original jurisdiction under 28 U.S.C. § 1331, the existence of a federal
question “must be determined from what necessarily appears in the plaintiff’s statement of his or
[her] own claim in the bill or declaration, unaided by anything alleged in anticipation of
avoidance of defenses which it is thought the defendant may interpose.” Franchise Tax Bd. of
State of Cal. v. Constr. Laborers Vacation Tr. for S. Cal., 463 U.S. 1, 10 (1983) (quoting Taylor
v. Anderson, 234 U.S. 74, 75-76 (1914)).
Removal may be achieved by filing a notice of removal in the appropriate district court
“within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the
initial pleading setting forth the claim for relief upon which such action or proceeding is based.”
28 U.S.C. § 1446(a) and (B). Where, as here, a defendant seeks removal pursuant to 28 U.S.C. §
1441(a), the notice of removal must be joined by or consented to by “all defendants who have
been properly joined and served” in the state court action. 28 U.S.C. § 1446(b)(2).
Here, DPS argues that remand to the Common Pleas Court is required because: (1) there
is no federal question at issue in its pleading originally filed in the Common Pleas Court; (2) the
notice of removal was not timely filed; and (3) all Defendants did not join in or consent to
removal. Doc. 9. The undersigned need not address the timeliness of Cummings-Elmore’s

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removal to this Court because remand to state court is required based upon the other arguments
advanced by DPS in its motion.
Cummings-Elmore contends that removal is appropriate on the basis that she asserts
counterclaims under 42 U.S.C. §§ 1983, 1985 and 1986, federal statutes. See docs. 1-1, 10.
However, contrary to Cummings-Elmore’s assertion of federal question jurisdiction based solely
upon her counterclaims, “a defendant may not remove a case to federal court unless the
plaintiff’s complaint establishes that the case ‘arises under’ federal law.” Franchise Tax, 463
U.S. at 10. DPS’s action -- seeking to vacate an arbitration award pursuant to Ohio Rev. Code
§§ 2711.10 and 2711.13 -- does not raise a federal question and, therefore, the Court lacks
subject matter jurisdiction requiring remand to the Common Pleas Court. See SoBran, Inc. v.
Garg, No. 3:06CV164, 2006 WL 2382499, at *1 (S.D. Ohio Aug. 14, 2006).
In addition to the foregoing, the undersigned notes that Cummings-Elmore’s notice of
removal is defective because it is neither joined in by co-defendant DEA nor has CummingsElmore represented that DEA consents to removal as required by 28 U.S.C. § 1446. “Failure to
obtain unanimous consent forecloses the opportunity for removal under Section 1446.” Loftis v.
United Parcel Serv., Inc., 342 F.3d 509, 516 (6th Cir. 2003).

Thus, Cummings-Elmore’s

removal is defective and requires remand.
III.
Based upon all of the foregoing, the undersigned RECOMMENDS that: (1) DPS’s
motion to remand (doc. 9) be GRANTED; (2) this case be REMANDED to the Common Pleas
Court of Montgomery County, Ohio; and (3) this case be TERMINATED on the Court’s
docket.

Date:

December 19, 2017

s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within FOURTEEN days after being
served with this Report and Recommendation. This period is not extended by virtue of Fed. R.
Civ. P. 6(d) if served on you by electronic means, such as via the Court’s CM/ECF filing system.
If, however, this Report and Recommendation was served upon you by mail, this deadline is
extended to SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d). Parties may seek an
extension of the deadline to file objections by filing a motion for extension, which the Court may
grant upon a showing of good cause.
Any objections filed shall specify the portions of the Report and Recommendation
objected to, and shall be accompanied by a memorandum of law in support of the objections. If
the Report and Recommendation is based, in whole or in part, upon matters occurring of record
at an oral hearing, the objecting party shall promptly arrange for the transcription of the record,
or such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient,
unless the assigned District Judge otherwise directs.
A party may respond to another party’s objections within FOURTEEN days after being
served with a copy thereof. As noted above, this period is not extended by virtue of Fed. R. Civ.
P. 6(d) if served on you by electronic means, such as via the Court’s CM/ECF filing system. If,
however, this Report and Recommendation was served upon you by mail, this deadline is
extended to SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d).
Failure to make objections in accordance with this procedure may forfeit rights on appeal.
See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947, 949-50
(6th Cir. 1981).

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