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Dayton Public Schools v. Cummings-Elmore

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

December 19, 2017

DAYTON PUBLIC SCHOOLS, Plaintiff,
v.
LISA CUMMINGS-ELMORE, et al., Defendants.

          District Judge Thomas M. Rose

         REPORT AND RECOMMENDATION[1] THAT: (1) PLAINTIFF'S MOTION FOR REMAND (DOC. 9) BE GRANTED; (2) THIS CASE BE REMANDED TO THECOMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO; AND (3) THIS CASE BE TERMINATED ON THE COURT'S DOCKET

          Michael J. Newman United States Magistrate Judge

         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 Cummings-Elmore. 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.

         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 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 removal to this ...


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