Toledo Fair Housing Center v. Farmers Ins. Group, 3:99CV7108.

• Decision Date: 21 June 1999
• Docket Number: No. 3:99CV7108.,3:99CV7108.
• Citation: 61 F.Supp.2d 681
• Parties: TOLEDO FAIR HOUSING CENTER, et al., Plaintiffs, v. FARMERS INSURANCE GROUP OF COMPANIES, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

61 F.Supp.2d 681

TOLEDO FAIR HOUSING CENTER, et al., Plaintiffs, v. FARMERS INSURANCE GROUP OF COMPANIES, et al., Defendants.

No. 3:99CV7108.

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

June 21, 1999.

Stephen M. Dane, Janet Elizabeth Hales, Beth A. Rowe, Cooper, Walinski & Cramer, Toledo, OH, for Plaintiffs.

James D. Curphey, Porter, Wright, Morris & Arthur, Columbus, OH, Benjamin B. Klubes, Skadden, Arps, Slate, Meacher & Flom, Washington, DC, James E. Pohlman, Porter, Wright, Morris & Arthur, Columbus, OH, Andrew L. Sandler, Skadden, Arps, Slate, Meacher & Flom, Washington, DC, for Defendants.

Order

CARR, District Judge.

This is a case arising from allegations of housing discrimination. Plaintiffs filed an action in state court under Ohio law, Ohio Revised Code § 4112.02(H)(4). Defendants removed this case to federal court pursuant to 28 U.S.C. § 1441. Plaintiffs claim that removal was improper. Pending is plaintiffs' motion for remand and attorney fees. (Doc. 6).

A suit may be removed to federal court under 28 U.S.C. § 1441(a) only if it could have been brought there originally. See Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 10, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). Here, defendants do not allege that jurisdiction exists under 28 U.S.C. § 1332, diversity of citizenship. Thus, defendants must show that this court has jurisdiction pursuant to 28 U.S.C. § 1331, federal question jurisdiction.

"A defendant may not remove a case to federal court unless the plaintiff's complaint establishes that the case arises under federal law." Sable v. General Motors Corp., 90 F.3d 171, 174 (6th Cir.1996) (citations omitted). "The presence or absence of federal question jurisdiction is governed by the `well pleaded complaint rule,' which provides that a federal question is presented on the face of plaintiff's properly pleaded complaint." Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 118 S.Ct. 921, 925, 139 L.Ed.2d 912 (1998) (citations omitted). A federal question appears on the face of a well pleaded complaint if an issue of federal law is a necessary element of plaintiff's claim or if federal law completely preempts plaintiff's state law cause of action. See id., see also Gully v. First Nat. Bank in Meridian, 299 U.S. 109, 112, 57 S.Ct. 96, 81 L.Ed. 70 (1936) (holding that to come within federal question jurisdiction, "a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff's cause of action").

Federal laws on fair housing are codified at 42 U.S.C. §§ 3601—3631. Section 3615 of Title 42 states:

Nothing in this subchapter shall be construed to invalidate or limit any law of a State ... that grants, guarantees, or protects the same rights as are granted by this subchapter; but any law of a State ... that purports to require or permit any action that would be a discriminatory housing practice under this subchapter shall to that extent be invalid.

Thus, federal law does not preempt Ohio law regarding housing discrimination except to the extent an Ohio law is itself a "discriminatory housing practice." 42 U.S.C. § 3615.

Ohio Revised Code § 4112.02(H)(4) provides that is shall be an unlawful discriminatory practice to

[d]iscriminate against any person in the terms or conditions of selling, transferring, assigning, renting, leasing, or subleasing any housing accommodations or in furnishing facilities, services, or privileges in connection with the ownership, occupancy, or use of any housing accommodations, including the sale of fire, extended coverage, or homeowners insurance, because of race, color, religion, sex, familial status, ancestry, handicap, or national origin or because of the racial composition of the neighborhood in which the housing accommodations are located ....

Defendants do not allege that section 4112.02(H)(4) is a discriminatory housing practice. Thus, plaintiffs' complaint in state court was based wholly on Ohio law and no issues of federal law were necessary to the pleading of the state law discrimination claims.

While the operative facts of this case might give rise to a federal cause of action under 42 U.S.C. § 3613, "[a]bsent complete preemption, the plaintiffs in a non-diversity action are masters of their complaint and may avoid federal subject-matter jurisdiction by relying exclusively on state law." Ahearn v. Charter Township of Bloomfield, 100 F.3d 451, 456 (6th Cir.1996). Plaintiffs filed suit in state court under Ohio law alone and chose not to assert any federal claims.

If plaintiffs had, in their state court suit, asserted claims under both state and federal law, then removal might have been proper under 28 U.S.C. § 1367 which provides that

in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.

In order to exercise supplemental jurisdiction over purely state law claims, however, there must be "claims in the action within such original jurisdiction," that is, plaintiffs must have asserted, in addition to their state law claims, claims over which a federal district court has original jurisdiction. 28 U.S.C. § 1367. As noted above, in their state court suit, plaintiffs asserted only state law claims and did not assert any federal claims or state law claims which contain an element of federal law.

Defendants' citations to cases involving artful pleading are wholly inapposite. Plaintiffs have properly plead state law claims. The state law claims are not preempted by federal law and do not require the resolution of an issue of federal law. Therefore, plaintiffs did not artfully plead a federal claim as a state law claim. It is true that plaintiffs could have filed a federal claim in addition to their pure state law claims. However, if a plaintiff chooses not to assert a federal claim and to rely wholly on state law, then a plaintiff may do so without running afoul of the rule against artful pleading. See Ahearn, 100 F.3d at 456. Put simply, plaintiffs have not artfully plead a federal claim as a state claim; plaintiffs have plead a pure state law claim and have not plead a federal claim at all.

Defendants' assertion that HUD regulations support the adjudication of plaintiffs' claims in a federal forum is also without merit. When a complaint filed with HUD has been referred to a state or local agency, the Assistant Secretary of HUD must "advise the aggrieved person and respondent of the aggrieved person's right commence a civil action under [42 U.S.C. § 3613] of the FHA in an appropriate United States District Court...." 24 C.F.R. § 103.100(b). The plain language of the regulation states that the Assistant Secretary must advise the aggrieved person and the respondent of the aggrieved person's right to file suit in federal district court.

42 U.S.C. § 3613 itself states that "[a]n aggrieved person may commence a civil action in an appropriate United States district court or State court...." While 24 C.F.R. § 103.100 does not require the Secretary to inform the aggrieved person and the respondent of the aggrieved person's right to file suit in State court under 42 U.S.C. § 3613, 24 C.F.R. § 103.100 does not say that an aggrieved person may not file a suit in State court under § 3613 and it certainly does not say that an aggrieved person is prohibited from filing state law claims in state court. Even if the federal regulation attempted to so limit the rights of an aggrieved party, such a regulation would have no basis in the relevant statutes and would therefore be unenforceable. See H. Wetter Manufacturing Co. v. United States, 458 F.2d 1033, 1034 (6th Cir. 1972) (holding, in the context of enforcing a Treasury Regulation, that a "Court may not enforce a regulation that is plainly inconsistent with the revenue statute.").

The only apparent basis for removal in this case is the fact that plaintiffs filed an administrative complaint under...