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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

STATE OF OHIO, 

 Case No. 2:12-cv-01053 

 Plaintiff, JUDGE GREGORY L. FROST 

 Magistrate Judge Terence P. Kemp 

v. 

 

NOBILE & THOMPSON CO., L.P.A., 

 Defendant. 

OPINION AND ORDER

 This matter is before the Court on Plaintiff State of Ohio’s Complaint seeking declaratory 

relief. Though originally filed as a state-court declaratory judgment action, Defendant Nobile & 

Thompson Co. L.P.A. (“Nobile & Thompson”) removed the case to this Court on the purported 

basis of federal question jurisdiction. On January 30, 2013, the Court convened a hearing on the 

merits of the Plaintiff’s Complaint. Pursuant to the arguments at the hearing, the pleadings filed 

in this matter, the prehearing briefs of the parties, and the joint stipulations of fact submitted as 

evidence by the parties, the Court now issues this Opinion and Order. 

For the reasons that follow, the Court finds that it cannot reach the merits of the State’s 

claim for a declaratory judgment. The Court lacks subject matter jurisdiction over this cause and 

therefore remands it to the state court from where it came. 

I. Background 

In a nutshell, this lawsuit deals with whether special counsel appointed by the Ohio 

Attorney General (“OAG”) for collection of consumer debts may use the letterhead of the 

OAG’s office in their collections communications. (ECF No. 1-1 at && 4-8, PAGEID# 7.) 

Under the statutory authority granted by Ohio Rev. Code ' 109.08, the OAG regularly appoints 

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special counsel for the purpose of collecting unpaid consumer debts owed to state agencies that 

have been certified to the OAG. The parties stipulated that appointed special counsel are not 

employees of the State of Ohio, do not receive health care benefits from the State, do not 

participate in the Public Employees Retirement System, and are not paid a salary for their 

services. (ECF No. 16, at & 14, PAGEID# 142.) Rather, special counsel are independent 

contractors engaged by the OAG. 

The OAG requires special counsel to use OAG letterhead in pursuit of the collection 

efforts undertaken under special counsel’s contract with the State. (Id. at && 6-7, PAGEID# 

141.) Defendant Nobile & Thompson, a law firm, has taken the position that the use of OAG 

letterhead by special counsel violates federal and state law. (Compl., ECF No. 1-1. at && 9-10, 

PAGEID# 7-8.) Before the State filed this lawsuit, Nobile & Thompson had sent letters to 

special counsel and to the Ohio Attorney General, taking the position that the special counsel’s 

use of the letterhead violated the Fair Debt Collection Practices Act (“FDCPA”), the Ohio 

Deceptive Trade Practices Act (“ODTPA”), and the Ohio Consumer Sales Practices Act 

(“OCSPA”); in the case of the letters to special counsel, Nobile & Thompson also sought 

information aimed at discovering the breadth of special counsel’s collection activities and the 

scope of a potential class action. 

The State commenced this action in the Franklin County (Ohio) Court of Common Pleas 

on October 31, 2012. The State’s Complaint pleaded two counts, one for “Declaratory 

Judgment” and the other for “Injunctive Relief.” (Compl., ECF No. 1-1, at PAGEID# 4-5.) 

Count One of the Complaint sought a judgment that the use of OAG letterhead by special 

counsel “is legal and does not violate any provision of Ohio’s Deceptive Trade Practices Act, 

Ohio’s Consumer Practices Act, or the federal Fair Debt Collection Practices Act.” (Id. at & 16, 

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PAGEID# 9.) In Count Two, the Complaint asked for an injunction to prevent Defendant from 

“interfering with the Attorney General’s direction to special counsel that they use Attorney 

General letterhead in their collection activities.” (Id. at PAGEID#11.) Nobile & Thompson 

removed the action to this Court on the purported basis of federal question jurisdiction. (ECF 

No. 1.) The Notice of Removal argued that the State’s Complaint required the Court to 

determine “a substantial federal question” and was thus an action that arose under the laws of the 

United States within the meaning of 28 U.S.C. ' 1331. (Id. at PAGEID# 2-3.) 

Under the terms of an Agreed Entry filed prior to the hearing on the merits of this case, 

the Court dismissed the State’s claim for injunctive relief. (ECF No. 7, at PAGEID# 87.) 

Pursuant to the parties’ agreement, the Court ordered that the merits hearing convened in this 

matter would be for the purpose of issuing a declaratory judgment on the substantive issue of 

whether special counsel’s use of OAG letterhead in its consumer collection communications 

violates federal and/or state law. (Id. at PAGEID# 86.) 

On January 30, 2013, the Court convened a hearing on the merits of the State’s 

Complaint.1

 The matter is submitted to this Court for decision based upon the arguments of 

counsel at the hearing and the joint stipulations (and exhibits thereto) submitted to the Court as 

evidence in this matter. (ECF No. 16.) 

II. Discussion 

The State brought this action seeking a declaratory judgment that the use of OAG 

letterhead by the special counsel appointed by the OAG does not violate the FDCPA, the 

ODTPA, or the OCSPA. Before reaching the merits of the State’s complaint, however, it is 

necessary for this Court to determine whether it has subject matter jurisdiction over this action. 

 

1 The hearing was originally scheduled for December 12, 2012. (ECF No. 5.) At the request of the 

parties at a telephone status conference, the Court continued the hearing to January 30, 2013. (ECF No. 

9.) 

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If subject matter jurisdiction is lacking, the Court has the power to sua sponte remand the case to 

the state court. See 28 U.S.C. ' 1447(c); Page v. City of Southfield, 45 F.3d 128, 132-33 and n.8 

(6th Cir. 1995). 

A. No Federal Question Appears in the Well-Pleaded Complaint 

Before Defendant removed it to this Court, this case originated as a declaratory judgment 

action in state court, purporting to allege “claims” for “Declaratory Judgment” and “Injunctive 

Relief.” (Compl., ECF No. 1-1, at PAGEID# 10-11.) It is well settled that federal courts do not 

have jurisdiction when a federal question is presented by a complaint for a state declaratory 

judgment when the federal court would not have jurisdiction over the same lawsuit if brought 

under the federal Declaratory Judgment Act. See Franchise Tax Bd. of Calif. v. Construction 

Laborers Vacation Trust for S. Cal., 463 U.S. 1, 19 (1983). Under the federal Declaratory 

Judgment Act, “there must be an independent basis of jurisdiction, under statutes equally 

applicable to actions for coercive relief, before a federal court may entertain a declaratoryjudgment action.” Bauhaus USA, Inc. v. Copeland, 292 F.3d 439, 447 n.47 (5th Cir. 2002) 

(quoting 10B Wright, Miller, & Kane, Federal Practice and Procedure ' 2766 (West 3d ed. 

1998)). 

Defendant’s Notice of Removal posits 28 U.S.C. ' 1331 as the basis of federal 

jurisdiction. For jurisdiction to attach under 28 U.S.C. ' 1331, there must be a federal question 

appearing on the face of the well-pleaded complaint. See, e.g., Merrell Dow Pharmaceuticals, 

Inc. v. Thompson, 478 U.S. 804, 808 (1986). And because a defendant may remove a case to 

federal court only if it could have been brought there originally, the question whether removal 

jurisdiction exists is also determined by reference to the “well-pleaded complaint.” Id. (citing 28 

U. S. C. § 1441(b)). 

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Perhaps cognizant of the well-pleaded complaint rule, Nobile & Thompson posited the 

existence of removal jurisdiction based on the rule of Grable & Sons Metal Prods., Inc. v. Darue 

Eng. & Mfg., 545 U.S. 308 (2005). (ECF No. 1, at PAGEID# 3.) In Grable & Sons, the United 

States Supreme Court held that a federal court could exercise removal jurisdiction over a statelaw claim when the state-law claim necessarily raises a disputed and substantial federal issue, so 

long as the federal forum’s exercise of jurisdiction does not disturb any congressionally 

approved balance of federal and state judicial responsibilities. Grable & Sons, 545 U.S. at 314. 

Based on this rule, the Supreme Court found jurisdiction to exist over a state-law quiet title 

claim, the disposition of which turned on a disputed issue of federal tax law. Due to the 

sufficiently substantial federal interest “in providing a federal forum for federal tax litigation,” 

the Supreme Court found removal jurisdiction proper. Id. at 315. 

Grable & Sons does not confer jurisdiction in this case. The basis of federal jurisdiction 

in Grable & Sons was that the plaintiff’s complaint pleaded a state-law claim that implicated a 

substantial and disputed question of federal law. Accordingly, the federal issue appeared on the 

face of the well-pleaded complaint, embedded in a state-law cause of action. In contrast, this 

case reveals no such claim. The State’s complaint in this case does not even plead a substantive 

state-law claim at all—rather, it pleaded only purported claims for specific remedies (i.e., a 

declaratory judgment and a since-dismissed prayer for injunctive relief). Absent a true state-law 

“claim” beyond one for a declaratory judgment, the Court cannot conclude that the rule of 

Grable & Sons is implicated here. 

B. Jurisdiction in the Declaratory Judgment Context 

The conclusion that there is no federal question on the face of the State’s Complaint, 

however, does not necessarily end this Court’s jurisdictional inquiry. In the declaratory 

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judgment context, federal courts (including the Sixth Circuit Court of Appeals) consider whether 

the facts alleged in the plaintiff’s well-pleaded complaint show that the defendant could file a 

coercive action arising under federal law. See, e.g., AmSouth Bank v. Dale, 386 F.3d 763, 775 

(6th Cir. 2004); Samuel C. Johnson 1988 Trust v. Bayfield Cnty., Wisc., 649 F.3d 799, 801 (7th 

Cir. 2011); Stuart Weitzman, LLC v. Microcomputer Res., Inc., 542 F.3d 859, 861 (11th Cir. 

2008); Columbia Gas Trans. Corp. v. Drain, 237 F.3d 366, 370 (4th Cir. 2001). “If a wellpleaded complaint by the defendant (the ‘natural’ plaintiff) would have arisen under federal law, 

then the court has jurisdiction when the ‘natural’ defendant brings a declaratory-judgment suit.” 

NewPage Wis. Sys. v. United Steel, Paper & Forestry, Rubber, Mfg., Energy Allied Indus. and 

Serv. Workers Int’l Union, 651 F.3d 775, 777-78 (7th Cir. 2011). As the Stuart Weitzman court 

explained: 

[I]n the context of a declaratory judgment action, the normal position of the 

parties is reversed; therefore, we do not look to the face of the declaratory 

judgment complaint in order to determine the presence of a federal question. 

Instead, this court must determine whether or not the cause of action anticipated 

by the declaratory judgment plaintiff arises under federal law. Our inquiry is thus 

whether, absent the availability of declaratory relief, the instant case could 

nonetheless have been brought in federal court. To do this, we must analyze the 

assumed coercive action by the declaratory judgment defendant. Federal question 

jurisdiction exists in a declaratory judgment action if the plaintiff has alleged facts 

in a well-pleaded complaint which demonstrate that the defendant could file a 

coercive action arising under federal law. 

Stuart Weitzman, 542 F.3d at 862 (citations and internal quotations omitted) (quoted with 

approval in Severe Records, LLC v. Rich, 658 F.3d 571, 580 (6th Cir. 2011)). 

In this case, Nobile & Thompson has argued that the use of OAG letterhead by the 

appointed special counsel violates one or more provisions of the FDCPA. And the letters to 

special counsel and the OAG submitted as evidence here certainly reveal the possibility of a 

“coercive action” being brought based on the FDCPA. But the jurisdictional inquiry is not 

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confined to look simply to the possible existence of just any “coercive action” that the 

declaratory judgment defendant might bring. The federal courts must “consider whether a 

federal question would arise in a hypothetical non-declaratory suit in which the declaratoryjudgment defendant is the plaintiff and the declaratory-judgment plaintiff is the defendant.” 

Chase Bank USA, N.A. v. City of Cleveland, 695 F.3d 548, 554 (6th Cir. 2012); see also T T E A 

v. Ysleta Del Sur Pueblo, 181 F.3d 676, 681 (5th Cir. 1999) (framing the jurisdictional inquiry as 

whether the declaratory judgment plaintiff can “show that there would be jurisdiction over a 

claim against it” (emphasis added)). Thus, in this case, this Court has removal jurisdiction over 

this action if there would be federal jurisdiction over claim by Nobile & Thompson against the 

State. This requirement is not met in this case and compels this Court to conclude that federal 

subject matter jurisdiction is lacking. 

To determine whether Nobile & Thompson could have brought a coercive action against 

the State in federal court requires an inquiry into whether Nobile & Thompson has standing to 

bring such a claim. See, e.g., National Hockey League v. National Hockey League Players 

Ass’n, 789 F. Supp. 288, 293 (D. Minn. 1992) (dismissing plaintiff’s declaratory judgment action 

because declaratory judgment defendant lacked standing to bring federal antitrust lawsuit against 

plaintiff); Ochsner Health Plan v. N. La. Physician Hosp. Org., No. CV-01-2601, 2002 U.S. 

Dist. LEXIS 24250, at *11 (E.D. La. Dec. 16, 2002) (examining whether declaratory judgment 

defendant had standing to bring a coercive action under ERISA against plaintiff). The 

enforcement provision of the FDCPA provides that “any debt collector who fails to comply with 

any provision of this subchapter with respect to any person is liable to such person.” 15 U.S.C. '

1692k(a). The Sixth Circuit has interpreted the “any person” language as granting standing to 

both the debtor and those (such as the executor of a debtor’s estate) who “stand in the shoes” of 

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the debtor. Wright v. Finance Serv., 22 F.3d 647, 650 (6th Cir. 1994). Nobile & Thompson, the 

law firm representing debtors who may potentially bring suit under the FDCPA, does not fit this 

description. The Court finds no basis upon which Nobile & Thompson would have standing to 

assert claims under the FDCPA, much less to assert them against the State. 

The nature of the threatened claims further cuts against any conclusion that there would 

be federal subject matter jurisdiction over a coercive suit filed by Nobile & Thompson against 

the State. As presented to the Court, the issue in this case is whether the use of OAG letterhead 

by special counsel in their consumer collections communications violates the FDCPA, ODTPA, 

and/or the OCSPA. While the special counsel appointed by the OAG are using the letterhead at 

the direction of the OAG, the fact remains it is the special counsel who are drafting, printing, 

compiling, and distributing the collection letters placed at issue in this case. (ECF No. 16, at &

30, PAGEID# 144.) Thus, it appears that any coercive action brought under the FDCPA would 

be against the special counsel themselves and not against the State.2

 And even if the State were 

joined as a defendant in a coercive action under the FDCPA, the Court has considerable doubt 

that such a claim would survive dismissal on jurisdictional grounds due to the Eleventh 

Amendment. See, e.g., Kozaczek v. N.Y. Higher Edn. Servs. Corp., No. 11-4437, 2012 U.S. App. 

LEXIS 23831 (2d Cir. Nov. 20, 2012) (affirming dismissal of FDCPA action against state 

agency for want of subject-matter jurisdiction on Eleventh Amendment grounds); Codar, Inc. v. 

Arizona, 168 F.3d 498, 1999 U.S. App. LEXIS 949 (9th Cir. 1999) (unpublished table decision) 

(same). 

 

 

2 Such an action would bring front and center the issue of whether an attorney acting as special counsel of 

the OAG is a “debt collector” within the meaning of the FDCPA. Though the parties briefed and argued 

this issue, the Court does not reach this substantive issue in light of its disposition of the matter on 

jurisdictional grounds. 

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C. Jurisdiction is Lacking Under the Principles of Franchise Tax Board

There lies another significant reason why this Court lacks subject matter jurisdiction. 

The posture in which this case is before the Court is analogous to the procedural posture 

underlying the Supreme Court’s decision in Franchise Tax Board. The Supreme Court found 

subject matter jurisdiction lacking there, which goes a long way toward persuading this Court 

that jurisdiction is lacking here. 

Franchise Tax Board began as a lawsuit filed in state court by the California Franchise 

Tax Board, a state agency charged with enforcement of California’s income tax laws. Franchise 

Tax Board, 463 U.S. at 5. The Franchise Tax Board sought among other things a declaratory 

judgment that the defendant, Construction Laborers Vacation Trust (“CLVT”), was legally 

obligated to future tax levies. Id. at 6. CLVT removed the case to federal court based on a 

theory that the State’s lawsuit implicated the Employee Retirement Income Security Act 

(“ERISA”). The case eventually made its way to the United States Supreme Court, which held 

unanimously that the case was not within the removal jurisdiction conferred by 28 U.S.C. '

1441. Id. at 7. 

In finding jurisdiction lacking, the Supreme Court acknowledged that “[f]ederal courts 

have regularly taken original jurisdiction over declaratory judgment suits in which, if the 

declaratory judgment defendant brought a coercive action to enforce its rights, that suit would 

necessarily present a federal question.” Id. at 19. Despite acknowledging this universal 

jurisdictional rule in the federal courts, the Court found subject matter jurisdiction lacking, even 

assuming that CLVT could have sought an injunction under ERISA against California’s 

application of state regulations to funds it held in trust. Id. at 20. In so holding, the Supreme 

Court noted the unique aspect of a state being the plaintiff in a declaratory judgment action: 

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There are good reasons why the federal courts should not entertain suits by the 

States to declare the validity of their regulations despite possibly conflicting 

federal law. States are not significantly prejudiced by an inability to come to 

federal court for a declaratory judgment in advance of a possible injunctive suit 

by a person subject to federal regulation. They have a variety of means by which 

they can enforce their own laws in their own courts, and they do not suffer if the 

pre-emption questions such enforcement may raise are tested there. The express 

grant of federal jurisdiction in ERISA is limited to suits brought by certain parties, 

as to whom Congress presumably determined that a right to enter federal court 

was necessary to further the statute’s purposes. It did not go so far as to provide 

that any suit against such parties must also be brought in federal court when they 

themselves did not choose to sue. The situation presented by a State’s suit for a 

declaration of the validity of state law is sufficiently removed from the spirit of 

necessity and careful limitation of district court jurisdiction . . . to convince us 

that, until Congress informs us otherwise, such a suit is not within the original 

jurisdiction of the United States district courts. Accordingly, the same suit 

brought originally in state court is not removable either. 

Id. at 21-22 (citation and footnotes omitted). 

Though Franchise Tax Board involved ERISA and this case involves the FDCPA as the 

purported federal jurisdictional hook, the rationale is just as compelling here. The State has (and 

indeed pursued) avenues in Ohio courts available to it to test the validity of the OAG special 

counsel’s use of the OAG’s letterhead in their collection communications with consumer 

debtors. And like ERISA, the grant of federal jurisdiction in the FDCPA is limited to suits 

brought by certain parties “as to whom Congress presumably determined that a right to enter 

federal court was necessary to further the statute’s purposes.” Id. at 21. Congress did not go so 

far as to require a claim implicating the FDCPA to be brought in federal court; quite to the 

contrary, the FDCPA confers jurisdiction upon the federal and state courts to vindicate its 

provisions. See 15 U.S.C. ' 1692k(d). Like the Supreme Court in Franchise Tax Board, this 

Court is convinced that the matter brought here is “sufficiently removed from the spirit of 

necessity and careful limitation of district court jurisdiction” (Franchise Tax Board, 463 U.S. at 

21) as to dictate against the existence of subject matter jurisdiction. 

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Accordingly, the Court finds that this action does not fall within the Court’s removal 

jurisdiction. 

D. Discretionary Considerations Counsel Against Exercising Jurisdiction 

Even if this Court concluded that it could exercise subject-matter jurisdiction under the 

principles set forth above, the analysis does not end. In the context of the federal Declaratory 

Judgment Act, it is settled that “[t]he statute is an ‘enabling Act, which confers a discretion on 

the courts rather than an absolute right upon the litigant’ to have a case heard in federal court.” 

Severe Records, LLC, 658 F.3d at 580 (quoting Wilton v. Seven Falls Co., 515 U.S. 277, 287 

(1995)). “District courts possess discretion in determining whether and when to entertain an 

action under the Declaratory Judgment Act, even when the suit otherwise satisfies subject matter 

jurisdictional prerequisites.” Wilton, 515 U.S. at 282. Thus, “considerations of practicality and 

wise judicial administration” could lead a court to, within its sound discretion, decline to 

entertain a declaratory judgment action. Id. at 289. This principle applies not only to actions 

brought under the federal Declaratory Judgment Act but also to state declaratory judgment 

actions removed to federal court. See Golden Eagle Ins. Co. v. Travelers Cos., 103 F.3d 750, 

755 (9th Cir. 1996), overruled on other grounds by Gov’t Emps. Ins. Co. v. Dizol, 133 F.3d 1220, 

1224 (9th Cir. 1998); Leasing One Corp. v. Fid. & Deposit Co. of Md., No. 3:11-35-DCR, 2011 

U.S. Dist. LEXIS 95683, at *4 (E.D. Ky. Aug. 25, 2011). In this case, practicality and wise 

judicial administration counsel against this Court’s exercise of jurisdiction. 

This case comes before the Court in a goofy (for lack of a better term) procedural 

posture. For starters, the State of Ohio preemptively brought suit against Nobile & Thompson, 

seeking no relief except declaratory and (originally) injunctive relief, with no underlying 

substantive cause of action. Goofier still, Nobile & Thompson, the declaratory judgment 

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defendant, would not be the party in the threatened “coercive action”; rather, it would be Nobile 

& Thompson’s clients who would be (i.e., the debtors suing under the FDCPA). Goofier yet, the 

declaratory judgment defendant’s (i.e., Nobile & Thompson’s) theoretical coercive action—even 

assuming it could possibly be a proper plaintiff to bring it—would not be against the declaratory 

judgment plaintiff (i.e., the State of Ohio). Rather, the parties’ briefing and evidence establishes 

that the threatened coercive action would be against the special counsel who are actually 

utilizing the OAG letterhead in their collections communications. 

In other words, the FDCPA claim upon which the parties hang their jurisdictional hat 

does not belong to Nobile & Thompson and, even if it did, would not be brought against the 

State anyway. The goofy reality is that this Court is asked to exercise federal jurisdiction based 

upon a threatened FDCPA claim that would involve neither the State of Ohio nor Nobile & 

Thompson as parties. Practical and wise judicial administration counsels against a federal 

tribunal exercising jurisdiction over such goofiness. 

III. Conclusion 

For the foregoing reasons, the Court hereby REMANDS this case to the Franklin County 

(Ohio) Court of Common Pleas. 

IT IS SO ORDERED. 

 

 /s/ Gregory L. Frost 

 GREGORY L. FROST 

 UNITED STATES DISTRICT JUDGE 

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