United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION AND ORDER
C. NUGENT United States District Judge.
matter is before the Court on Plaintiffs Motion for
Reconsideration. (ECF #77). Defendant filed an Opposition to
the motion, and Plaintiff filed a Reply. (ECF # 80, 81).
Following a review of the parties' submission and all
applicable law. the Court finds that Plaintiffs Motion should
be GRANTED in pan and DENIED in part.
originally filed suit in state court, and Defendant
Intellicorp Records, Inc. removed the case to federal court
with the consent of Defendant Cato Corp. Removal was not
contested. This court has original subject matter
jurisdiction over all civil actions arising under the laws of
the United States. 28 U.S.C. §1331. Both counts of the
Amended Complaint are claims under the Fair Credit Reporting
Act, a federal statute. Therefore, this Court has original
jurisdiction over the case and removal was
Court previously found that under the United States Supreme
Court case Spokeo v. Robins. 136 S.Ct. 1540 (2016).
and Article III of the United States Constitution, the claim
against the Cato Corporation in Count One of the Amended
Complaint must be dismissed for lack of standing. The United
States Supreme Court has held that when a Plaintiff lacks
.Article III standing, as opposed to statutory standing, in
connection with a particular claim, the court has no federal
jurisdiction to decide that claim. See. e.g.. Steel Co.
v. Citizens for a Better Env 'l., 523 U.S.
83. 97, 101-105(1998).
now argues that, upon finding that it lacked subject matter
jurisdiction due to the standing issue, the Court was
required to remand this claim back to state Court. Defendant
contends that any remand would be futile and the Court should
clarify that its dismissal of Count One was with prejudice.
According to 28 U.S.C. §1447. "[i]f at any time
before final judgment it appears that the district court
lacks subject matter jurisdiction, the case shall be
remanded." The Sixth Circuit has made clear that when
triggered, remand is mandatory and there is no exception for
futility. "[T]he futility of a remand to state court
does not provide an exception to the plain and unambiguous
language of § 1447(c)." Coyne v. Am. Tobacco
Co.. 183 F.3d 488. 496-97 (6mCir.
1999). Therefore, if this Court lacked subject matter
jurisdiction over the case, it would have to be remanded,
regardless of whether it had any chance of success.
under the circumstances of this case, and the precise wording
of the statute, the automatic remand requirement of Section
1447(c) has not been triggered. Although the Court has found
that Plaintiff lacked standing to bring Count One. a second
cause of action, based on a federal statute, is still
pending. None of the parties have argued that the Court lacks
subject matter jurisdiction over the second
claim. Section i 14(c) applies when the Court
lacks subject matter jurisdiction over the entire case, not
over an individual claim. All but one of the cases cited by the
Plaintiff in support of its argument for remand involved the
remand of an entire case. not a single count within a
properly removed, multi-count case."
it is difficult to imagine how a state court could interpret
a federal statute to permit recovery when there is no
standing to raise the claim under federal law. Plaintiff is
correct when it argues that the dismissal in this case should
have been without prejudice. The Sixth Circuit has
consistently held that a dismissal for lack of subject matter
jurisdiction, including a lack of Constitutional standing
under Article III. requires a dismissal without prejudice.
See. e.g.. B & V Distrib. Co. v. Dottore Cos.
LLC. 278 F.App'x 480, 487 (6th Cir.
for the reasons set forth above, the Court GRANTS in part,
and DENIES in part Plaintiffs Motion for Reconsideration.
(ECF #77). The motion is denied to the extent that it sought
remand of Count One of the Amended Complaint. The motion for
reconsideration also sought clarification of the type of
dismissal ordered. It is granted in so far as the Court
agrees thai the dismissal of Count One should have been
designated as '"without prejudice." The
Court's previous Order issued on February 24. 2017 is
hereby amended to reflect this designation.
The federal removal statute. 28 U.S.C.
§1441 allows removal of a claim arising under the laws
of the United States, as well as removal of any claim not
within the original or supplemental jurisdiction of the
district court. Both of the claims in this case arise under
the laws of the United States, and. therefore, the case, as a
whole, was properly removed. Following removal, a district
court is required to sever from the action all claims that
are not within the original or supplemental jurisdiction of
the district court. This provision does not require remand of
Count One because, even though Plaintiff did not have
standing to bring the claim, the claim does arise under the
laws of the United States.
The parties have reached a settlement
agreement on Count Two. and the Court has issued a
preliminary approval of the settlement. (ECF #84). A Fairness
Hearing has been scheduled for August 17. 2017.
Courts routinely exercise jurisdiction
over claims that do not support independent federal
jurisdiction by means of the pendant and ancillary
jurisdiction provisions of 28 U.S.C. §1367. According to
Section 1367. "in any civil action of which the district
courts have original jurisdiction, the district courts shall
have supplemental jurisdiction over all other claims that. .
. form part of the same case or controversy."
Id. Ohio courts are not bound by the injury-in-fact
requirements of Article III. even when interpreting a federal
statute. See. ASARCO Inc. V. Kadish. 490 U.S.
605; 617 (1989). Further, under Ohio law. although
a case may be dismissed for lack of standing, it does not
affect the court's subject matter jurisdiction to
determine the matter with prejudice. Bank of America v.
Kuchta.141 Ohio St.3d 75 (2014). Therefore, there is an
argument to be made that although it lacks federal
jurisdiction to determine the question, the Court could
exercise supplemental jurisdiction and make a final
determination based on how Ohio would address the issue
presented under this federal statute. However, because the
language of this section, suggests that the Court's