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Case: 1:18-cv-00591-SJD Doc #: 18 Filed: 11/09/18 Page: 1 of 6 PAGEID #: 127

IN THE UNITED STATES DISTRICT COURT


FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

BRITTNEY HEITMAN, : Case No. 1:18-cv-591


:
Plaintiff, :
: Judge Susan J. Dlott
v. :
:
AFTAB PUREVAL, in his official : Order Remanding Case to State Court
capacity and in his individual capacity, :
:
Defendant. :

This matter is before the Court on Plaintiff Brittney Heitman’s Motion to Remand. (Doc.

3.) Defendant, Aftab Pureval, sued in his official and individual capacities, has filed a response

in opposition (Doc. 15), to which Plaintiff has replied (Doc. 17). For the reasons that follow,

Plaintiff’s Motion will be GRANTED. The Court will remand this action to the Court of

Common Pleas of Hamilton County, Ohio.

I. BACKGROUND AND PROCEDURAL HISTORY1

Heitman is a resident of Hamilton County, Ohio, and a former employee of the Hamilton

County Clerk of Courts. (Doc. 5 at PageID 48.) Defendant Aftab Pureval,2 Hamilton County

Clerk of Courts, is the Clerk of Courts for Hamilton County, Ohio, and is the former employer of

Heitman. (Id.)

On February 17, 2017, Heitman was terminated from her employment with the Hamilton

County Clerk of Courts. (Id. at PageID 49.) On February 28, 2017, Heitman and the Clerk of

Courts executed a Termination Agreement. (Id.) Heitman agreed to waive her right to bring any

1
The Court has drawn background facts from the Notice of Removal (Doc. 1) and Plaintiff’s Complaint (Doc. 5).
2
The Complaint refers to Pureval in his official capacity as the “Clerk of Courts” and Pureval in his individual
capacity as “Pureval individually.” For ease of reference, the Court adopts these references in its Order.
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litigation against the Clerk of Courts related to her termination in exchange for a severance

payment of $4,808.26. (Doc. 5 at PageID 49.) The parties also agreed to a non-disparagement

clause, which states:

Neither Employer nor Employee shall make any statements to third parties which
are disparaging, derogatory or negative about one another. If Employer or
Employee are asked by a third party about Employee’s departure, they will state
only that the Employer decided to make a change in leadership.

(Id.) Plaintiff claims that since entering into the Termination Agreement, the Clerk of Courts

and/or Pureval individually have published statements to third parties suggesting that she was

fired because she was a political patronage or nepotism. (Id. at PageID 50–51.)

On August 21, 2018, Heitman brought suit in the Court of Common Pleas of Hamilton

County, Ohio. In her two-count Complaint, Plaintiff seeks a declaratory judgment as to the

rights, status, and other legal relations of the parties under the Termination Agreement. She also

asserts a claim for breach of contract.

On August 22, 2018, Pureval individually removed the case from the Court of Common

Pleas of Hamilton County, Ohio, to the District Court for the Southern District of Ohio pursuant

to 28 U.S.C. § 1441(a) on the basis that the action arises under the Constitution, laws, or treaties

of the United States pursuant to 28 U.S.C. § 1331. (Doc. 1.) He asserts that “[a]lthough couched

in the Ohio Constitution, Plaintiff’s prior-restraint-of-free-speech claim arises under and requires

resolution through interpretation of the United States Constitution” which provides the Court

with original and removal jurisdiction. (Id. at PageID 3.) Heitman filed a Motion to Remand

pursuant to 28 U.S.C. § 1447(c) on the basis that the matter was brought solely under state law.3

3
Plaintiff also filed a motion for a temporary restraining order, which the Court denied on August 23, 2018.
(Motion, Doc. 6; Transcript, Doc. 12.)
2
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(Doc. 3.) Defendant opposes remand. (Doc. 15.) The matter is fully briefed and ripe for

decision.4

II. LAW

On a motion for remand, the question presented is whether the district court lacks subject

matter jurisdiction. “If at any time before final judgment it appears that the district court lacks

subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). Defendant, as the

removing party, bears the burden of establishing that removal was proper. Long v. Bando Mfg.

of Am., Inc., 201 F.3d 754, 757 (6th Cir. 2000)(“The burden of showing that the district court has

original jurisdiction is on the party seeking removal.”). A district court must resolve any doubt

of its removal jurisdiction in favor of state court jurisdiction in deference to federalism concerns.

Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108–09 (1941); Coyne v. Am. Tobacco Co.,

183 F.3d 488, 493 (6th Cir. 1999).

Defendant removed this action from state court on the basis of federal-question

jurisdiction under 28 U.S.C. § 1331. "For statutory purposes, a case can ‘aris[e] under’ federal

law in two ways." Gunn v. Minton, 568 U.S. 251, 257 (2013). First, “a case arises under federal

law when federal law creates the cause of action asserted.” Id. Second, the “arising under”

jurisdiction can be found in a “special and small category of cases” in which a state-law claim

raises a stated federal issue that is “(1) necessarily raised, (2) actually disputed, (3) substantial,

and (4) capable of resolution in federal court without disrupting the federal-state balance

approved by Congress.” Id. at 258.

4
Although oral argument was requested, the Court is able to resolve the matter on the briefs. As such, oral
argument is unnecessary.
3
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Federal jurisdiction is proper only when a federal question has been presented on the face

of the plaintiff’s properly pleaded complaint (the “well-pleaded complaint rule”). Caterpillar,

Inc. v. Williams, 482 U.S. 386, 392 (1987). Thus, a plaintiff may “avoid federal jurisdiction by

exclusive reliance on state law.” Id. Of course, the well-pleaded complaint rule has exceptions,

including the artful-pleading doctrine, which applies when a plaintiff has drafted the complaint to

“avoid naming a federal statute as the basis for the claim, [when] the claim is in fact based on a

federal statute.” Mikulski v. Centerior Energy Corp., 501 F.3d 555, 560–61 (6th Cir. 2007).

III. ANALYSIS

The parties dispute whether Plaintiff’s request for declaratory judgment provides federal-

question jurisdiction. In her claim for declaratory judgment, Heitman seeks a declaration of

rights, status or other legal relations under a written contract under Ohio Rev. Code §§ 2721.03

and 2721.04. Within that claim, she asserts:

Plaintiff requests that the Court . . . grant declaratory relief that the
Termination Agreement does not prohibit Heitman from publishing her
own account of her firing to dispute the account published by Aftab
Pureval Individually, and that in the event Heitman does make such a
publication, that she may retain the severance payment.

Alternatively, . . . Heitman asks that this Court declare that the non-
disparagement portion of the Termination Agreement is unenforceable as
against policy and Article I Section 11 of the Ohio Constitution, as it
prohibits Heitman from speaking to defend her personal and professional
reputation and from speaking on a matter of public controversy and great
public interest.

Alternatively, . . . that Aftab Pureval Individually has no right to enforce


the Termination Agreement or seek damages individually should Heitman
breach the non-disparagement portion of the Termination Agreement, or
any other portion of the Termination Agreement.

(Doc. 5 at PageID 53–54.)

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Plaintiff argues that as master of her Complaint, she has asserted only state law claims.

Although she requests a declaratory judgment, she does so only with respect to her rights under

Article I Section 11 of the Ohio Constitution, the free speech provision.5 Defendant, on the other

hand, contends that Plaintiff has tried to artfully plead around the federal Constitution as the

basis for her prior restraint on speech claim, upon which she relies on the Ohio Constitution and

an unspecified “policy.” Defendant argues that Article I, Section 11 of the Ohio Constitution is

interpreted in lockstep with the First Amendment to the United States Constitution and that no

decision addressing Article 1, Section 11 can avoid analyzing and applying the First Amendment

and cases interpreting it.

The Court rejects the argument that the Complaint is artfully pled. In Eastwood Mall,

Inc. v. Slanco, the Supreme Court of Ohio held that under the facts of that case, the protections

afforded by Article I, Section 11 to the Ohio Constitution extended no further than those

provided under the First Amendment to the United States. 68 Ohio St. 3d 221, 222 (1994). In

so holding, the court noted that it had “previously concluded that the free speech guarantees

accorded by the Ohio Constitution are no broader than the First Amendment, and that the First

Amendment is the proper basis for interpretation of Section 11, Article I of the Ohio

Constitution.” Id. However, “[w]hether a state court will adopt as the meaning of the state’s

constitution the federal courts’ interpretation of parallel language in the United States

5
Article I Section 11 of the Ohio Constitution states:

Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible
for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or
of the press. In all criminal prosecutions for libel, the truth may be given in evidence to the jury,
and if it shall appear to the jury, that the matter charged as libelous is true, and was published with
good motives, and for justifiable ends, the party shall be acquitted.

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Constitution is a matter of state law.” Rossello-Gonzalez v. Calderon-Serra, 398 F.3d 1, 31 (1st

Cir. 2004). Whether the Ohio Supreme Court will adopt a “lock-step” analysis of the Article 1,

Section 11 of the Ohio Constitution with the First Amendment of the United States Constitution

is a matter of state law. Eastwood was decided in 1994. The United States Supreme Court has

decided many cases on the First Amendment in the intervening 24 years. It is a matter of Ohio

state law to reevaluate a parallel adoption. Furthermore, any questions about federal jurisdiction

must be resolved in favor of federalism. Accordingly, the Court will remand this action for lack

of jurisdiction.

III. CONCLUSION

Based on the foregoing reasons, Heitman’s Motion to Remand (Doc. 3) is GRANTED.

Pursuant to 28 U.S.C. § 1447(c), the Clerk is ORDERED to REMAND this civil action to the

Court of Common Pleas of Hamilton County, Ohio.

IT IS SO ORDERED.

S/Susan J. Dlott_______________
Judge Susan J. Dlott
United States District Court