Childs v. Kroger Co.

• Decision Date: 15 October 2020
• Docket Number: Civil Action 2:20-cv-4216
• Parties: TAWAN CHILDS, Plaintiff, v. THE KROGER CO., et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

TAWAN CHILDS, Plaintiff, v. THE KROGER CO., et al., Defendants.

Civil Action 2:20-cv-4216

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

October 15, 2020

Judge Edmund A. Sargus, Jr.

Chief Magistrate Judge Elizabeth P. Deavers

ORDER AND REPORT AND RECOMMENDATION

This matter is before the Court on a motion to remand filed on August 20, 2020, by Plaintiff Tawan Childs ("Mr. Childs"), who now is proceeding pro se. (ECF No. 5),¹ the response (ECF No. 9) filed by Defendants The Kroger Co., Heather Gray, Patti Hutchison, and Levi VanReeth (collectively, "Defendants"), and Mr. Childs' reply memorandum (ECF No. 10). For the reasons that follow, it is RECOMMENDED that Mr. Childs' Motion to Remand be GRANTED and that this action be REMANDED to the Court of Common Pleas for Franklin County.

I.

On December 20, 2019, Plaintiff Tawan Childs ("Plaintiff") filed a Complaint against Defendants in the Franklin County, Ohio Court of Common Pleas, where the case was docketed as Case No. 19CV-12-10192 and assigned to Judge O'Donnell. (ECF No. 1 at 1; ECF No. 2.) Mr. Childs asserted claims of disability and race discrimination; aiding, abetting, and inciting of discrimination; wrongful termination in violation of public policy; retaliation; and defamation, all under Ohio law. (Id.)

On August 6, 2020, Mr. Childs, without the assistance of his counsel,² submitted to Judge O'Donnell a four-page memorandum ("Memorandum") regarding issues raised by Kroger and its counsel in his then-recently held deposition. (ECF No. 1, Ex. B; ECF No. 5.) The subject line of the Memorandum reads:

Case no. 19CV-12-10192; Improper unethical conduct, state and federal law violations at deposition hearing on July 20, 2020; Labor Relations; Property Interest in Union membership, contractual due process under state common Law, Ohio Constitution and Labor Management Reporting and Disclosure Act, Title I and La[n]drum-Griffin Congressional Intent of Due process. (Id.)

The body of the Memorandum further states, in relevant part:

... During the recent Deposition in case sub judice, on 7/2/2020, Kroger Co. improperly raised a stale disclosure issue and reaffirmed their support of Heather's false and moot disclosure claim that originated when I was actually a union member with interest in the membership's benefits, rights and protections afforded those with alleged disciplinary violations. But Kroger Co. evaded union rules, illegally raised this issue 4 years later and two years after I graduated from management training (while union member during management interviews and training). This appears to violate Union democracy, collective bargaining, my property interest in Union membership and contractual due process per Union Constitution, By law of UFCW 1059 rules and LMRDA (1982) Title I, Section 101(a)(5) which states in pertinent part: (5) Safeguards Against Improper Disciplinary Act-No member of any labor organization may be fined, suspended, expelled or otherwise disciplinedexcept for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with specific written charges; (B) given a reasonable time to prepare his defense; (C) afforded a full and fair hearing. See, e.g. 29 U.S.C. Section 411 (a)(5) (1982)

... Your honor ... my point in communication is this: I was a union member with Union rights with UFCW Local 1059 after Hire, I paid Union dues for this property right of membership and benefits; I was same union member during Interview for Management and while I was in Management Training. The issue of Disclosure is stale and Kroger waived it. It is improper and moot since they waived background check on case by case basis but also there were time frames and disciplinary rules applied to union members for violations. ... Heather defamed my character by violating my rights by raising pretextual, stale and moot disclosure issue that originated when I was a union member. Kroger Co. and Heather through their attorneys continue to breach my contractual due process rights under Ohio common law and my due course rights under Ohio Constitution and LMRDA too....

In addition, it would appear that LMRDA does not pre-empt the state court and legislative regulation in the area of due process and other individual rights of union members. 29 U.S.C. Section 413 ("Nothing contained in [Title I] shall limit the rights and remedies of any member of a labor organization under any State or Federal law or before any court or other tribunal.")

...

For these reasons, Your honor, I request consideration that you subpoena and order Kroger Co. to produce UFCW Local 1059 Rules in effect between 2014 and 2018; I request a court review of this and Discovery Conference to inquire into these ethical issues, state and federal violations even at recent Deposition Hearing on July 20, 2020 stemming from illegal and void termination. Kroger Co. violated my rights even at Deposition to raise this stale and erroneous issue of Disclosure. I also ask that you order me reinstated with additional relief because of damages and emotional distress stemming from Kroger Co. robbery and hostile environment of Harassment after robbery, racial discrimination and denial of requests of reasonable accommodations from not only plaintiff but also doctor's note and recommendation. See, e.g., Risa L. Lieberwitz, Due Process and the LMRDA: An Analysis of Democratic Rights in the Union and at the Workplace, 29 B.C.L. Rev. 21 (1987), ...

Also, see, in general, Board of Regents v. Roth, 408 U.S., 532, 545 (1985); Taylor v. Favorito, 74 N.E.2d 768, 772 (Ohio App. 1947)(natural justice, right to due process independent of contracts); Falcone v. Dantinne, 420 F.2d 1157, 1165 (3d Cir. 1969)(Right to full hearing)

On August 18, 2020, Defendants, relying on this Memorandum, filed their Notice of Removal in this Court. (ECF No. 1.) Defendants contend that, in his Memorandum, Mr. Childs has alleged, for the first time, that "Defendants violated his rights under federal law, including the Labor Management Reporting and Disclosure Act of 1959, 29 U.S.C. §§ 401-531 ('LMRDA')." (ECF No. 9, at p.2.) Accordingly, Defendants sought removal, contending that this Court has original jurisdiction under 28 U.S.C. § 1331.

II.

28 U.S.C. Section 1441 governs removal and provides in relevant part as follows: "[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). Accordingly, "[o]nly state-court actions that originally could have been filed in federal court may be removed to federal court by the defendant." Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). A federal court has limited subject matter jurisdiction.

"The basic statutory grants of federal court subject-matter jurisdiction are contained in 28 U.S.C. § 1331, which provides for '[f]ederal-question' jurisdiction, and § 1332, which provides for '[d]iversity of citizenship' jurisdiction." Arbaugh v. Y&H Corp., 546 U.S. 500, 501 (2006). Federal-question jurisdiction is invoked when a plaintiff pleads a claim "arising under" the federal laws, the Constitution, or treaties of the United States. Id. (citation omitted). Further, the removal statute is strictly construed. Alexander v. Elec. Data Sys. Corp., 13 F.3d 940, 949 (6th Cir. 1994).

A defendant removing an action to federal court must file a notice of removal. 28 U.S.C. § 1446(a). Generally, the defendant must file the notice of removal "within 30 days after thereceipt 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." Id. § 1446(b)(1). "The 30-day period in § 1446(b)(1) starts to run only if the initial pleading contains 'solid and unambiguous information that the case is removable.'" Berera v. Mesa Med. Grp., PLLC, 779 F.3d 352, 364 (6th Cir. 2015) (quoting Holston v. Carolina Freight Carriers Corp., No. 90-1358, 1991 WL 112809, at *3 (6th Cir. June 26, 1991) (per curiam). "If the initial pleading lacks solid and unambiguous information that the case is removable, the defendant must file the notice of removal 'within 30 days after receipt . . . of a copy of an amended pleading, motion, order or other paper' that contains solid and unambiguous information that the case is removable." Id. (citing 28 U.S.C. § 1446(b)(3)); see also Walker v. Philip Morris USA, Inc., 443 Fed.Appx. 946, 950 (6th Cir.2011). "Section 1446(b)'s requirement of solid and unambiguous information is akin to actual notice." Id. (citing Peters v. Lincoln Elec. Co., 285 F.3d 456, 466 (6th Cir.2002) (citation omitted) (internal quotation marks omitted) ("The intent of § 1446(b) is to make sure that a defendant has an opportunity . . . to remove upon being given notice in the course of the case that the right exists."); Charles Alan Wright et al., 14C Federal Practice and Procedure § 3731 (4th ed. 2009) ("The statute requires 'an amended pleading, motion, order, or other paper' to act as a trigger to commence the running of a new 30-day period once the defendant has received actual notice, through one of the documents described in Section 1446(b), that a previously unremovable case has become removable.").

III.

Defendants, as the removing parties, bear the burden of establishing federal subject matter jurisdiction. Nat'l Pension Corp., LLC v. Horter Inv. Mgmt., LLC, No. 1:20-CV-0086, 2020 WL 812887, at *2 (S.D. Ohio Feb. 19, 2020), report and recommendation adopted asmodified, No. 1:20-CV-86, 2020 WL 1502042 (S.D. Ohio Mar. 30, 2020) (citing Smith v. Nationwide Property and Cas. Ins. Co., 505 F.3d 401, 405 (6th Cir. 2007)); see also Gipe v. Medtronic, Inc., 416 F. Supp. 3d 687, 691 (W.D. Ky. 2019) ("[r]emoving defendants...