Mitchell v. Lemmie, No. C-3-02-76.

• Decision Date: 06 May 2002
• Docket Number: No. C-3-02-76.
• Citation: 231 F.Supp.2d 693
• Parties: Larry MITCHELL, et al., Plaintiffs, v. Valerie LEMMIE, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

231 F.Supp.2d 693

Larry MITCHELL, et al., Plaintiffs, v. Valerie LEMMIE, et al., Defendants.

No. C-3-02-76.

United States District Court, S.D. Ohio, Western Division.

May 6, 2002.

COPYRIGHT MATERIAL OMITTED

John Josephy Scaccia, Dayton, OH, for plaintiffs.

Neil Frank Freund, Freund Freeze & Arnold-3, Leonard J. Bazelak, Freund, Freeze & Arnold, Dayton, OH, for defendants.

DECISION AND ENTRY SUSTAINING PLAINTIFFS' MOTION FOR REMAND (DOC. # 2); PLAINTIFFS ORDERED TO SUBMIT EVIDENCE, WITHIN FOURTEEN (14) DAYS FROM DATE, AS TO AMOUNT OF ATTORNEY FEES AND COSTS INCURRED IN FILING THE MOTION FOR REMAND; CAPTIONED CAUSE REMANDED TO THE MONTGOMERY COUNTY COURT OF COMMON PLEAS; JUDGMENT TO BE ISSUED ACCORDINGLY; TERMINATION ENTRY

RICE, Chief Judge.

The instant litigation arises out of the failure of Plaintiff Larry Mitchell ("Mitchell") to receive a promotion to the position of Division Manager for Waste Collection with the City of Dayton.¹ According to his Second Amended Complaint (Doc. # 1), in 1981, Plaintiff began working for the Department of Public Works, Division of Waste Collection for the City of Dayton, as an entry-level waste collector. He was an exemplary employee, and on July 11, 1994, he was offered the position of Waste Collection Supervisor. He performed his duties in a highly professional and proficient manner. By September of 1998, Mitchell's supervisor admitted that she could not identify any areas in need of improvement.

In the Spring of 1998, the Division Manager of Waste Collection was promoted to Deputy Director of Public Works. The City of Dayton began to consider candidates to fill the vacated position, and by September of that year, the field of candidates had been narrowed to two individuals: Mitchell, who is a Caucasian American, and Mr. James, an African American. It was decided that these two individuals would compete for the job. On January 1, 1999, Plaintiff began serving as Acting Division Manager of Waste Collection, a position which he was to hold for three months. Plaintiff's performance as Acting Division Manager was exceptional, and both the Director and Deputy Director of Public Works planned to appoint him as Division Manager of Waste Collection.

According to Plaintiff, Defendant Valerie Lemmie ("Lemmie"), the Dayton City Manager and an African American, and other persons in operational control of the Dayton City Government decided that an African American should continue to hold the position of Division Manager of Waste Collection or, if no passable African American could be found to accept the position, a female should be chosen. Plaintiff alleges that during the last five years, a group of African American employees of the City of Dayton, led by Lemmie, has gained operational control of the Dayton City Government, and has instituted a system based on nepotism, cronyism, and corruption. When Lemmie learned that Mitchell had been selected to fill the Division Manager position, she overruled the decision and ordered that a "National" search be conducted for an appropriate candidate to fill the position. The Director and Deputy Director of Public Works asked Mitchell to continue as Acting Division Manager, assuring him that he was still in the running for the position and was a viable candidate. Plaintiff agreed to continue as Acting Division Manager.

As part of the "National" search, Plaintiff again applied for the position of Division Manager of Waste Collection. A five-person panel was selected to interview and to evaluate candidates. All candidates were informed that the top three individuals would be selected for a meeting with Lemmie and that one of those three would be the next Division Manager. Plaintiff was among the top three candidates. Of those three individuals, Plaintiff was evaluated to be the second choice. By the end of September of 1999, all three candidates had met with Lemmie. By December of 1999, the two other candidates had withdrawn themselves from consideration for the position. Although Mitchell was the only remaining candidate, Lemmie ordered that he not be offered the job, and that a second national search be conducted. By late December, 1999, or early January, 2000, Mitchell was aware that he would never be appointed to the Division Manager of Waste Collection position. Consequently, he asked to be relieved of the responsibilities of Acting Division Manager. At the end of January of 2000, Plaintiff returned to the position of Waste Collection Supervisor. On October 1, 2000, Celeste Peele, an African American female and a sorority sister of Lemmie, was appointed Division Manager of Waste Collection.

On December 3, 2001, Plaintiff brought suit in the Montgomery County Court of Common Pleas against Lemmie; the City of Dayton; Mayor Michael Turner; and Dayton City Commissioners Dean Lovelace, Idotha Bootsie Neal, and Mary Weisman, setting forth fourteen claims for relief, to wit: (1) a state law claim for race discrimination, in violation of Ohio Rev. Code § 4112.02; (2) a state law claim for sex discrimination, in violation of Ohio Rev.Code § 4112.02; (3) a state common law claim for discrimination; (4) a state law claim for breach of contract; (5) a state law claim for equitable estoppel; (6) a state law claim for promissory estoppel; (7) a state law claim for negligent misrepresentation; (8) a state law claim for breach of the duty of good faith and fair dealing/ bad faith contract; (9) a state law claim for quantum meruit; (10) a state law claim for retaliation and discharge, in violation of public policy; (11) a state law claim for negligent and intentional infliction of emotional distress; (12) a state law claim for negligent supervision and administration; (13) a state law claim, brought by Mary Mitchell, for loss of consortium; and (14) a claim for punitive damages. Plaintiff filed an Amended Complaint on February 1, 2002, and a Second Amended Complaint on February 4, 2002, both of which set forth the same causes of action as the original Complaint and are virtually identical to that pleading. On February 19, 2002, Defendants removed the action to this Court, alleging that this Court has federal question subject matter jurisdiction.

Pending before the Court is Plaintiff's Motion for Expedited Remand (Doc. # 2). For the reasons assigned, Plaintiff's Motion is SUSTAINED.

The party seeking to litigate in federal court bears the burden of establishing the existence of federal subject matter jurisdiction. McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936). This is no less true where, as here, it is the defendants, rather than the plaintiff, who seeks the federal forum. E.g., Ahearn v. Charter Twp. of Bloomfield, 100 F.3d 451, 453-54 (6th Cir.1996). When the party asserting federal jurisdiction finds its allegations challenged, it must submit evidence substantiating its claims. Amen v. City of Dearborn, 532 F.2d 554, 560 (6th Cir.1976). The removing defendants' burden is to prove, by a preponderance of the evidence, that the jurisdictional facts they allege are true. Gafford v. General Electric Co., 997 F.2d 150, 158 (6th Cir.1993). The district court has "wide discretion to allow affidavits, documents and even a limited evidentiary hearing to resolve disputed jurisdictional facts." Ohio Nat. Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990) (citations omitted). The court may consider such evidence without turning the motion into one for summary judgment. Id.

In his Motion for Remand, Plaintiff asserts that the present action must be remanded to the Montgomery County Court of Common Pleas, because (1) the removal was untimely, and (2) he has not asserted any federal claim in his Second Amended Complaint. Plaintiff further argues, in the alternative, that if a federal question does exist, the action should be remanded, pursuant to 28 U.S.C. § 1367(c), because state law predominates over any federal question.

I. Timeliness of the Removal

28 U.S.C. § 1446 sets forth the procedure for removal. With regard to time limitations, it states, in pertinent part:

(b) The notice of removal of a civil action or proceeding shall be filed within thirty 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, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action.

28 U.S.C. § 1446(b). The Sixth Circuit has held that the statute conferring removal jurisdiction is to be construed strictly, because removal jurisdiction encroaches on a state court's jurisdiction. Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 534 (6th Cir.1999); Bearup v. Milacron, 2002 WL 482548, *3 (E.D.Mich. Feb. 28, 2002); Gafford v. General Electric Co., 997 F.2d 150, 164 (6th Cir.1993). "The strict time requirement for removal in civil cases is not jurisdictional; rather, `it is a strictly applied rule of procedure and untimeliness is a ground for remand so long as the timeliness defect has not been waived.'" Seaton v. Jabe, 992 F.2d 79, 81 (6th Cir.), cert. denied, 510 U.S. 871, 114 S.Ct. 200, 126 L.Ed.2d 157 (1993) (citation omitted).

In the present case, Defendants removed the action to this Court on February 19, 2002, seventy-five (75)...