UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JERRY L. SHIPP, Case No. 1:18-cv-444

On Behalf of Themselves and All Others

Similarly Situated, et al., Dlott, J.

Bowman, M.J.

Plaintiffs,

v.

NORTON OUTDOOR ADVERTISING, INC., et al.,

Defendants.

REPORT AND RECOMMENDATION

I. Background

Plaintiffs own residential property located close to 130 West Ross Avenue in St. 

Bernard, Ohio, where two digital outdoor advertising signs (“the Signs”) have been

erected. The property on which the signs have been erected is allegedly owned by 

Defendant LAL Properties, LLC (“LAL”) and the signs were erected and are operated by 

Defendant Norton Outdoor Advertising, Inc. (“NOA”).1 Plaintiffs’ complaint alleges that

the light from the Signs interferes with their enjoyment of their residential property and 

has adversely impacted the value of that property.

Plaintiffs initially filed their case in the Hamilton County Court of Common Pleas, 

but Defendants removed it to federal court on June 28, 2018 on the basis of federal 

question jurisdiction, because the original complaint included substantive and 

procedural due process claims against the Defendant Village of St. Bernard under 42

 

1Plaintiffs’ complaint alternatively alleges that another individual, Defendant Flora Byrnes, owns a piece of 

real properly located at 130 West Ross Avenue, and that it “cannot be ascertained with certainty whether 

the illegal billboard is located on LAL Properties, LLC’s or Flora Byrnes’s parcel, each with the given 

address of 130 West Ross Avenue.” (Doc. 3 at ¶¶13, 18).
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U.S.C. § 1983. (See Notice of Removal, Doc.1; see also Doc. 3, Complaint, Counts IV 

and V). However, on August 7, 2018, Plaintiffs voluntarily dismissed all claims against 

the Defendant Village of St. Bernard, thereby dismissing what appears to have been the 

sole basis for federal jurisdiction. On August 14, 2018, Plaintiffs also voluntarily 

dismissed their trespass claim, leaving only state law claims for nuisance and for 

negligence. 

Plaintiffs seek both injunctive and monetary relief. Additionally, they seek to 

bring this case as a putative class action on behalf of themselves and other property 

owners who may be similarly situated. Currently pending is Defendants’ motion to strike 

the class allegations pursuant to Rule 23, Fed. R. Civ. P. Although Defendants filed 

their motion to strike on August 29, 2018, briefing was stayed while the parties sought to 

resolve their dispute through mediation. Last month, when it became clear that no

early settlement would be forthcoming, the undersigned directed the parties to complete 

their briefing on the Defendants’ motion to strike the class allegations. 

Based upon the lack of any basis to continue federal jurisdiction, the undersigned 

now recommends that this case be remanded to state court. Following the 

recommended remand, the pending motion to strike the class allegations should be 

resolved by the state court. However, should the presiding district judge disagree, the 

undersigned alternatively recommends that the motion to strike be denied at this time, 

without prejudice to renew.

II. Threshold Subject Matter Jurisdictional Issue

Federal courts are courts of limited jurisdiction. Generally, a suit may be brought 

in federal court only if there is “federal question” jurisdiction, meaning that a 
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constitutional provision or a statute gives the court subject matter jurisdiction over the 

claims alleged in the complaint, or if there is “diversity jurisdiction,” meaning that the 

plaintiff and any defendants reside in different states. See generally 28 U.S.C. §§ 1331, 

1332. The basis for jurisdiction must be apparent from the face of the complaint. Rule 

8(a)(1), Fed. R. Civ. P. It is incumbent upon the district court to raise the question of 

subject matter jurisdiction sua sponte whenever it appears from the pleadings or 

otherwise that jurisdiction is lacking. Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 

149, 29 S.Ct. 42 (1908). Not only is a court permitted to raise the issue of its subject 

matter jurisdiction sua sponte, it must do so when a question as to its jurisdiction 

arises. Clarke v. Mindis Metals, Inc., No. 95–5517, 1996 WL 616677, at *3 (6th 

Cir.Oct.24, 1996) (“Neither party has raised the jurisdictional issue this case presents, 

but it is axiomatic that we must raise issues of subject-matter jurisdiction sua sponte” ) 

(emphasis added) (citing Community First Bank v. Nat'l Credit Union Admin., 41 F.3d 

1050, 1053 (6th Cir.1994)).

On the record presented, removal to federal court was proper because this Court

had original jurisdiction over the claims filed against the Village of St. Bernard under 42

U.S.C. § 1983, and supplemental jurisdiction over Plaintiffs’ closely related state law

claims. See 28 U.S.C. § 1367. However, Plaintiffs voluntarily dismissed their federal

claims soon after the removal of this case, leaving only two remaining state law claims.

A federal court retains discretion over whether or not to continue 

exercising supplemental jurisdiction over state law claims after all federal claims have 

been dismissed. Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 640 (2009).
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The general rule is that a district court should dismiss supplemental state law

claims if the federal claims have been dismissed before trial. Gaff v. Fed. Deposit Ins.

Corp., 814 F.2d 311, 319 (6th Cir. 1987); see also Carnegie-Mellon Univ. v. Cohill, 484

U.S. 343, 350, 108 S. Ct. 614 n.7 (1988) (recognizing that, in such cases, the balance

of interests will usually point toward declining to exercise jurisdiction). When deciding to

retain jurisdiction over a state law claim, a district court must consider “the

circumstances of the particular case, the nature of the state law claims, the character of

the governing state law, and the relationship between the state and federal claims.” City 

of Chicago v. International College of Surgeons, 118 S. Ct. 523, 534, 522 U.S. 156, 173 

(1997).

The Sixth Circuit has repeatedly cautioned trial courts about the limits of their

discretion to retain state law claims after all federal claims have been dismissed.

Trial courts do possess some discretion to decide a pendent state law 

claim once the federal basis for jurisdiction is dismissed. A trial court must 

balance the interests in avoiding needless state law decisions discussed 

in United Mine Workers against the "common sense" policies of judicial 

economy discussed in Rosado, when deciding whether to resolve a 

pendent state claim on the merits. Through a series of cases 

following United Mine Workers, this circuit has adopted the position that 

the district courts have minimal discretion to decide pendent state law 

claims on the merits once the basis for federal jurisdiction is dismissed 

before trial. See Service, Hospital, Nursing Home and Public Employees 

Union v. Commercial Property Services, 755 F.2d 499, 506 n. 9 (6th Cir. 

1985) ("this circuit has moved away from the position that the court has 

discretion to retain jurisdiction over a pendent state claim where the 

federal claim has been dismissed before trial."). However, in certain 

cases, the overwhelming interests in judicial economy may still allow a 

district court to properly exercise its discretion and decide a pendent state 

law claim once the federal claim is dismissed before trial. 

Province v. Cleveland Press Pub. Co., 787 F.2d 1047, 1055 (6th Cir. 1986). See also 

generally, Fox v. Brown Memorial Home, Inc., 781 F. Supp.2d 718 (S.D. Ohio 2011) 
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(discussing factors allowing supplemental jurisdiction, and factors required to retain 

jurisdiction after dismissal of federal claims). On the record presented, none of the 

relevant factors - judicial economy, convenience, fairness, or comity - favor the retention 

of supplemental jurisdiction by this Court. No substantial proceedings have occurred in 

this case. Based upon controlling case law, therefore, this Court should immediately 

remand to state court.

III. Alternatively, the Motion to Strike Should be Denied

Citing Rules 23(B)(2) and (3) of the Ohio Rules of Civil Procedure,2 Plaintiffs 

seek to pursue their two remaining state law claims on behalf of the following class:

All owners, renters, and occupants of property in St. Bernard who own 

and/or reside in property located within a Five Hundred (500) foot radius of 

the Norton Outdoor Advertising Electronic Variable Message Billboards 

located at 130 West Ross Avenue, St. Bernard.

(Doc. 3 at ¶83).

“The class action is an exception to the usual rule that litigation is conducted by 

and on behalf of the individual named parties only.” Sandusky Wellness Center, Inc. v. 

ASD Specialty Healthcare, Inc., 863 F.3d 460, 466 (6th Cir. 2017), cert. denied, 138 

S.Ct. 1284 (2018) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348 

(2011)(internal quotation marks omitted). The plaintiff who seeks class certification 

must “affirmatively demonstrate” compliance with the provisions of Rule 23. Wal-Mart 

Stores, Inc. v. Dukes, 564 U.S. at 350. The plaintiff must “satisfy through evidentiary 

proof” both the four factors listed in Rule 23(a) (numerosity, commonality, typicality, and 

adequate representation), and at least one of the provisions of Rule 23(b). Comcast 

 

2Rule 23 of the Ohio Rules of Civil Procedure is virtually identical to Rule 23 of the Federal Rules of Civil 

Procedure and has been interpreted in a manner consistent with federal law. 
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Corp. v. Behrend, 569 U.S. 27, 133 S.Ct. 1426, 1432 (2013). In determining whether to 

certify a class, the trial court is required to conduct a “rigorous analysis” and “to probe 

behind the pleadings.” Dukes, 564 U.S. at 350–51. At the same time, so long as it is 

exercised within the framework of Rule 23, a trial court retains “broad discretion” in 

deciding whether to certify a class. In re American Med. Sys., Inc., 75 F.3d 1069, 1079 

(6th Cir.1996) (additional citations omitted). 

In the case presented, Plaintiffs allege that the number of class members is so 

numerous that joinder is impracticable, because of the number of “apartment buildings, 

multi-family homes, and other non-owner occupied residential dwellings” within a 500 

foot radius of the billboards, together with “lessees and landowners of commercial 

property” who also have had their property “devalued.” (Doc. 3 at ¶94). Plaintiffs 

further allege that they can satisfy the commonality and typicality elements required 

under Rule 23, because common legal and factual questions “predominate over any 

individual question affecting Class Members.” (Id. at ¶ 95). And of course, they 

generally allege that class counsel is adequate, and that the individual Plaintiffs’ 

interests adequately represent those of the proposed Class. In contrast, Defendants 

argue that the class allegations should be stricken because the number of purported 

class members is too small to make joinder impracticable, because the allegations seek 

to establish an “overly broad” class, because the purported class members are not 

similarly situated and fail to meet the typicality, adequacy, and commonality 

requirements, and because a proposed “subclass” constitutes an impermissible “failsafe” class.

If the presiding district judge finds just cause to retain jurisdiction over the 
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supplemental state law claims, the undersigned alternatively would recommend that 

Defendants’ motion to strike the class allegations be denied at this time, without 

prejudice to renew. Although the Defendants present serious questions concerning 

Plaintiffs’ ultimate ability to prove the viability of their proposed class, the present motion 

is limited strictly to an assessment of the allegations made in the complaint. Many 

courts have stressed the need for caution when evaluating class action allegations prior 

to any discovery, “because class determination generally involves considerations that 

are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.” 

Geary v. Green Tree Servicing, LLC, 105 WL 1286347 (S.D. Ohio Mar. 20, 2015). As 

another court in this district put it:

Therefore, “a district court should defer decision on class certification 

issues and allow discovery ‘if the existing record is inadequate for 

resolving the relevant issues.’” Bearden v. Honeywell Int’l, Inc., 720 

F.Supp.2d 932, 942 (M.D. Tenn. 2010) (quoting In re Am. Med. Sys., 75 

F.3d 1069, 1086 (6th Cir. 1996)).

Beck v. Stony Hollow Landfill, Inc., 2017 WL 1551216 at *5 (S.D. Ohio May 1, 2017).

IV. Conclusion and Recommendation

For the reasons stated, IT IS RECOMMENDED THAT this case be 

REMANDED sua sponte to state court without ruling on the pending motion. Only in 

the alternative, if remand to state court is rejected by the presiding district judge, does 

the undersigned recommend that Defendants’ motion to strike the class allegations 

(Doc. 23) be denied, without prejudice to renew following a brief period of discovery to 

determine the propriety of the proposed class.

s/ Stephanie K. Bowman 

Stephanie K. Bowman

United States Magistrate Judge
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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JERRY L. SHIPP, Case No. 1:18-cv-444

On Behalf of Themselves and All Others

Similarly Situated, et al., Dlott, J.

Bowman, M.J.

Plaintiffs,

v.

NORTON OUTDOOR ADVERTISING, INC., et al.,

Defendants.

NOTICE 

Pursuant to Fed. R. Civ. P 72(b), any party may serve and file specific, written 

objections to this Report and Recommendation (“R&R”) within FOURTEEN (14) DAYS 

of the filing date of this R&R. That period may be extended further by the Court on 

timely motion by either side for an extension of time. All objections shall specify the 

portion(s) of the R&R objected to, and shall be accompanied by a memorandum of law 

in support of the objections. A party shall respond to an opponent’s objections within 

FOURTEEN (14) DAYS after being served with a copy of those objections. Failure to 

make objections in accordance with this procedure may forfeit rights on appeal. See 

Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 

1981).