IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MELODIE SANBORN, 

Plaintiff,

 Civil Action 2:17-cv-875

Chief Judge Edmund A. Sargus, Jr.

v. Magistrate Judge Chelsey M. Vascura

 

DENTALONE PARTNERS INC., et al., 

Defendants.

REPORT AND RECOMMENDATION

Plaintiff, Melodie Sanborn (“Plaintiff”), by and through counsel, brought this action in 

state court against Defendants, DentalOne Partners, Inc.; Dr. Zasso & Associates, Inc.; Meckler 

Dental Providers, Inc.; Charles J. Zasso, DMD; and Amber Overton (collectively “Defendants”),

asserting a number of state-law claims arising from the termination of her employment. This 

matter is before the Undersigned for a Report and Recommendation on Plaintiff’s Motion to 

Remand and for Costs Including Attorney’s Fees (ECF No. 11), Defendants’ Brief in Opposition 

(ECF No. 16), and Plaintiff’s Reply (ECF No. 17). For the reasons that follow, it is 

RECOMMENDED that Plaintiff’s Motion to Remand and For Costs Including Attorney’s Fees 

be GRANTED but that the Court decline to award Plaintiff attorney’s fees and costs pursuant to 

§ 1447(c). 

I.

Before Plaintiff’s termination, Defendants employed her as an Operations Leader at the 

DentalWorks of Grove City. As an Operations Leader, Plaintiff was responsible for the quality 
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of staff and dental services. Plaintiff alleges that during her employment, she observed

violations of the Occupational Safety and Health Administration’s (“OSHA”) laws and 

regulations and also violations of the Health Insurance Portability and Accountability Act’s 

(“HIPAA”) patient privacy requirements. She further alleges that when she reported these 

violations to her supervisor, Defendant Overton, Defendants retaliated against her by taking a 

number of adverse actions and ultimately terminating her in April 2017. 

On September 5, 2017, Plaintiff filed this action in the Franklin County Court of 

Common Pleas. In her Complaint, Plaintiff pleads several state-law claims, including a claim of 

conversion, an invasion of privacy claim, a common-law claim of retaliation in violation of Ohio 

public policy, a hostile work environment claim, and an emotional distress claim. She premises

her common-law whistleblower claim upon her allegation that Defendants retaliated against her 

for complaining about the OSHA and HIPAA violations she observed. 

Defendants timely removed the action to federal court under 28 U.S.C. § 1441, asserting 

in their Notice of Removal (ECF No. 1) that this case arises, in part, under the laws of the United 

States, namely, 29 U.S.C. § 651, et seq. (OSHA) and 42 U.S.C. § 1320d, et seq. (HIPAA). 

Defendants specifically reference Plaintiff’s allegations in support of her common-law tort claim 

of retaliation in violation of Ohio public policy. 

Plaintiff filed the subject Motion to Remand (ECF No. 11), asserting that the absence of a 

substantial federal question requires remand. Defendants oppose Plaintiff’s Motion to Remand 

and argue as they did in their Notice of Removal that Plaintiff’s claim “arises under” federal law

because she identified federal law as the source of the public policy violated. (ECF No. 16.) 
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II.

Defendants based removal on 28 U.S.C. § 1441(a), which provides that “[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 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). “[T]he scope of removal jurisdiction based on the existence of a federal question 

under § 1441(b) is considered to be identical to the scope of federal question jurisdiction under

[28 U.S.C.] § 1331.” Eastman v. Marine Mech. Corp., 438 F.3d 544, 549 (6th Cir.), cert. denied, 

549 U.S. 815 (2006) (internal quotation marks and citation omitted). Section 1331 authorizes 

federal district courts to exercise original jurisdiction in “all civil actions arising under the 

Constitution, laws, or treaties of the United States.” 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 and most commonly, “a case arises under federal law 

when federal law creates the cause of action asserted.” Id. (citations omitted). Second, “arising

under” jurisdiction lies in a “special in small category of cases” where 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. With respect to this second category, the Gunn Court explained that 

jurisdiction is proper when these four criteria are met “because there is a ‘serious federal interest 

in claiming the advantages thought to be inherent in a federal forum,’ which can be vindicated 

without disrupting Congress’s intended division of labor between state and federal courts.” Id.

(quoting Grable & Sons Metal Prod., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 314 (2005)). 

“As always, the party invoking federal jurisdiction has the burden to prove that 
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jurisdiction.” Glob. Tech., Inc. v. Yubei (Xinxiang) Power Steering Sys. Co., Ltd., 807 F.3d 806, 

810 (6th Cir. 2015). 

III.

Applying the foregoing, the undersigned finds that Defendants have failed to satisfy their 

burden to establish federal question jurisdiction. As set forth above, Defendants rely upon 

Plaintiff’s common-law tort claim that he was retaliated against in violation of Ohio public 

policy when he complained of Defendants’ violations of OSHA and HIPAA. Contrary to 

Defendants’ assertion, however, this claim does not present a substantial federal question. 

On this point, the United States Court of Appeals for the Sixth Circuit’s decision in 

Eastman is instructive and controls the outcome here. In Eastman, the plaintiff alleged that his 

employer took a number of adverse actions and ultimately fired him in retaliation for 

complaining about his employer’s violations of federal statutes that prohibit the submission of 

fraudulent claims to the military and federal government. 438 F.3d at 547-48. Following his 

termination, the plaintiff filed a complaint in state court and alleged that his employer committed 

a tort under Ohio law by wrongfully firing him in violation of public policy. Id. at 548. The 

employer removed the action, and the plaintiff filed a motion to remand. Id. at 548-49. The trial 

court denied the motion to remand and granted summary judgment for the employer. Id. at 549. 

On an appeal, the Sixth Circuit vacated the trial court’s entry of judgment and reversed the order 

denying remand, holding that “a state-law employment action for wrongful termination in 

violation of federal public policy does not present a substantial federal question over which 

federal courts may exercise ‘arising under’ jurisdiction under 28 U.S.C. § 1331.” 438 F.3d at 

553. 

The Eastman Court offered several reasons for its holding. The Court first explained that
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“[a] ‘substantial’ federal question involves the interpretation of a federal statute that actually is in 

dispute in the litigation and is so important that it ‘sensibly belongs in federal court.’” Id. at 552 

(quoting Grable & Sons, 545 U.S. at 315). The Court found that the meaning of the federal 

statutes upon which the plaintiff relied were not in serious dispute, reasoning that “[i]t can hardly 

be disputed that submitting fraudulent claims to the federal government would contravene 

national policy” and that it could not be denied that whistleblowers should not be punished for 

exposing their employers. Eastman, 438 F.3d at 552. Second, the Court found that “Congress’ 

withholding a private right of action from these statutes is an important signal to its view of the 

substantiality of the federal question involved.” Id. (citing Merrell Dow Pharm., Inc. v. 

Thompson, 478 U.S. 804, 814 (1986) (“We simply conclude that the congressional determination 

that there should be no federal remedy for the violation of this federal statute is tantamount to a 

congressional conclusion that the presence of a claimed violation of the statute as an element of a 

state cause of action is insufficiently ‘substantial’ to confer federal-question jurisdiction.”)). 

Third and finally, the Court concluded that “accepting jurisdiction of [the] state employment 

action would be disruptive of the sound division of labor between state and federal courts 

envisioned by Congress.” Id. at 553. On this point, the Court reasoned that because “the bulk of 

the judicial business” in employment litigation “is conducted in state courts,” the “balance would 

be upset drastically if state public policy claims could be converted into federal actions by the 

simple expedient of referencing federal law as the source of that public policy.” Id. 

The undersigned sees no basis for departing from the Eastman Court’s analysis and 

conclusion here. Plaintiff, like the Eastman plaintiff, alleges that his employer took a number of 

adverse actions and ultimately fired him in retaliation for complaining about his employer’s 

violations of federal statutes. Also like the Eastman plaintiff, Plaintiff brought a state-court 
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action alleging that his employer committed a tort under Ohio law by retaliating against him in 

violation of public policy. And although the federal statutes upon which Plaintiff relies are 

different than those relied upon by the Eastman plaintiff, the statutes at issue here—OSHA and 

HIPAA—also do not afford Plaintiff a private right of action. See Hill v. Mr. Money Fin. Co. & 

First Citizens Banc Corp., 309 F. App’x 950, 965 (6th Cir. 2009) (“OSHA regulations . . . do not 

provide an employee with a private right of action against the employer.”) (internal quotation 

marks and citation omitted)); Taylor v. Brighton Corp., 616 F.2d 256, 264 (6th Cir. 1980)

(holding that there is no private right of action to enforce violations of OSHA); Cabotage v. Ohio 

Hosp. for Psychiatry, LLC., No. 2:11-CV-50, 2012 WL 3064116, at *3−4 (S.D. Ohio July 27, 

2012) (collecting cases agreeing that “HIPAA creates neither an express nor an implied cause of 

action for private citizens to enforce its terms”) .

Moreover, the Supreme Court’s recent decision in Gunn further illustrates that no 

“substantial” federal questions exists here. In Gunn, the Court found that remand was 

appropriate even where the federal issue was actually disputed on the merits and was “the central 

point of the dispute.” 568 U.S. at 259, 264. The Court explained that “[t]he substantiality 

inquiry under Grable looks . . . to the importance of the issue to the federal system as a whole,” 

not just whether the federal issue was significant to the parties. Id. at 260. Here, Defendants

have not argued, and the undersigned cannot discern, how the resolution of any federal issue 

presented in this action would be of significance to HIPAA or OSHA jurisprudence.

For these reasons, it is RECOMMENDED that the Court REMAND this action to state 

court.

The undersigned declines, however, to recommend an award of attorney’s fees. When a 

court determines that the removal of a state-court case to federal court was improper, “the action 
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must be remanded, and the order ‘may require payment of just costs and actual expenses, 

including attorney fees, incurred as a result of the removal.’” Kent State Univ. Bd. of Trustees v. 

Lexington Ins. Co., 512 F. App’x 485, 488–89 (6th Cir. 2013) (quoting 28 U.S.C. § 1447(c)). An 

award of costs and fees under § 1447(c) is discretionary, “but subject to the guidance set forth by 

the Supreme Court in Martin v. Franklin Capital Corp., 546 U.S. 132, 136–37 (2005).” Id. 

(citing Warthman v. Genoa Twp. Bd. of Trs., 549 F.3d 1055, 1059 (6th Cir. 2008). In Martin, the 

Supreme Court imposed an objective reasonableness standard, limiting a court’s discretion to 

award fees to those cases in which “the removing party lacked an objectively reasonable basis 

for seeking removal.” 546 U.S. at 141. The United States Court of Appeals has similarly held 

that an award of costs and fees under § 1447(c) “is inappropriate where the defendant’s attempt 

to remove the action was fairly supportable, or where there has not been at least some finding of 

fault with the defendant’s decision to remove.” Wartham, 549 F.3d at 1059–60 (internal 

quotation marks and citation omitted). 

The Court does not find an award of attorney’s fees appropriate under the facts and 

circumstances presented in this case. It is therefore RECOMMENDED that the Court decline 

to award Plaintiff attorney’s fees and costs pursuant to § 1447(c). 

IV.

For the reasons set forth above, it is RECOMMENDED that the Court GRANT

Plaintiff’s Motion for Remand (ECF No. 11) and REMAND this action to the Franklin County, 

Ohio, Court of Common Pleas, Civil Division. It is further RECOMMENDED that the Court 

decline to award Plaintiff attorney’s fees and costs pursuant to 28 U.S.C. § 1447(c). 

PROCEDURE ON OBJECTIONS

If any party objects to this Report and Recommendation, that party may, within fourteen 
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(14) days of the date of this Report, file and serve on all parties written objections to those 

specific proposed findings or recommendations to which objection is made, together with 

supporting authority for the objection(s). A Judge of this Court shall make a de novo 

determination of those portions of the Report or specified proposed findings or recommendations 

to which objection is made. Upon proper objections, a Judge of this Court may accept, reject, or 

modify, in whole or in part, the findings or recommendations made herein, may receive further 

evidence or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C. 

§ 636(b)(1). 

The parties are specifically advised that failure to object to the Report and 

Recommendation will result in a waiver of the right to have the District Judge review the Report 

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of 

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 

/s/ Chelsey M. Vascura 

CHELSEY M. VASCURA 

UNITED STATES MAGISTRATE JUDGE