Kompothecras et al v. Bloomberg, L.P. et al

Filing 54

ORDER Plaintiffs Gary Kompothecras and Physicians Group, LLC's Motion to Remand 11 is GRANTED. Plaintiffs Gary Kompothecras and Physicians Group, LLC's request for costs and attorneys' fees for improper removal is DENIED. The Clerk is directed to REMAND this action to State Court. After remand has been effected, the Clerk shall close the case. Signed by Judge Virginia M. Hernandez Covington on 2/27/2014. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
GARY KOMPOTHECRAS and
PHYSICIANS GROUP, LLC,
Plaintiffs,
v.

Case No. 8:13-cv-3122-T-33TBM

BLOOMBERG, L.P., THE
ALLSTATE CORPORATION,
ALLSTATE INSURANCE COMPANY,
DAVID ARMSTRONG, KATHLEEN
SMITH f/k/a KATHLEEN WESTON,
and JENNIFER MOLINA,
Defendants.
_______________________________/
ORDER
This cause comes before the Court pursuant to Plaintiffs
Gary Kompothecras and Physicians Group, LLC’s Motion to Remand
(Doc. # 11), which was filed on December 19, 2013. Defendants
The

Allstate

Corporation

and

Allstate

Insurance

Company

(collectively, “Allstate”) filed a Response in Opposition to
the

Motion

to

Remand

(Doc.

#

30)

on

January

18,

2014.

Plaintiffs filed a Notice of Supplemental Authority (Doc. #
41) on January 29, 2014.

The Court grants the Motion to

Remand as follows.
I.

Background
Plaintiff Gary Kompothecras, a Florida chiropractor, is

the owner of Plaintiff Physicians Group, LLC as well as the
owner of the ASK GARY trademark. (Doc. # 1-1 at ¶¶ 4, 18).

Physicians Group, LLC has its principal place of business in
Sarasota,

Florida

accidents.

and

treats

the

(Id. at ¶¶ 3, 18).

victims

of

automobile

The ASK GARY trademark “is

licensed to a third party that utilizes the trademark in a
Florida Bar registered lawyer and medical referral service
through the phone number 1-800-ASK-GARY.” (Id. at ¶ 19).
On November 8, 2013, Plaintiffs filed an action in the
Circuit Court of the Twelfth Judicial Circuit in and for
Sarasota

County,

Florida,

claiming

that

the

Defendants,

Allstate, Bloomberg L.P., David Armstrong, Kathleen Weston,
and

Jennifer

Molina,

conspired

to

“misappropriate

trade

secrets, tortiously interfere with Plaintiffs’ advantageous
business relationships and to defame Plaintiffs.” (Id. at ¶
191).

According to Plaintiffs, “[t]he goal of the conspiracy

was to utilize misappropriated trade secrets and proprietary
or otherwise confidential information belonging to Physicians
Group and to fabricate a ruse of a news story in order to
manufacture a reason for a broad based and well disseminated
attack against Plaintiffs to harm their financial interests.”
(Id. at ¶ 190).
The Complaint alleges that Allstate was motivated to harm
Plaintiffs because “Allstate is one of the insurance companies
insuring patients seen by Physicians Group and has long taken

2

issue with Physicians Group’s . . . use of Magnetic Resonance
Imaging (‘MRIs’) . . ., which Allstate believes increases the
cost of its settlements in accident cases.” (Id. at ¶ 20).
According

to

the

Complaint,

Allstate

“has

a

history

of

directing its attorneys to use the media, including Armstrong
and

Bloomberg,

to

run

false,

biased

and

unflattering

defamatory articles against individuals and companies that are
adversely affecting its profits.” (Id. at ¶ 21).
Here,

Plaintiffs

contend

that

Allstate

enlisted

“Massachusetts based Bloomberg News reporter David Armstrong
to publish a hit piece on Physicians Group, Dr. Kompothecras
and ASK GARY.” (Id. at ¶ 44). According to the Complaint,
Bloomberg and Armstrong published a news article (titled
“Fraud Probed with Romney’s Fundraiser Cited by Victims”) and
a companion video (titled “Scantily Clad Women, Cash Used in
Pain Service Ads”), which contain derogatory and malignant
statements about Physicians Group, Kompothecras, and the ASK
GARY referral service. (Id. at ¶¶ 52, 64, 89; Doc. # 1-5).
Defendants Kathleen Weston and Jennifer Molina are former
clients of Physicians Group and are quoted in the ten-page
Bloomberg article.

The article states as to Weston:

After a Jeep crashed into her Geo Metro in
Clearwater, Florida, in 2009, Kathleen Weston’s
back and neck hurt. So she called 1-800-ASK-Gary,
a medical referral service advertised on local
3

television.
Weston was directed to Physician’s Group, a chain
of clinics
founded by Gary Kompothecras, a
chiropractor who has grown wealthy and gained
prominence in Florida catering to car-accident
victims.
Earlier this month, capping years of
political activity, Kompothcras was named a cochair of presidential contender Mitt Romney’s
Florida finance team.
Weston was billed an average of $385 for each of 41
visits to a Kompothecras clinic- usually including
a chiropractic adjustment, electrical stimulation
and ultrasound treatment. The total tab after four
months: $23,081.74. That included $4,109 for three
MRI scans and $120 for a take-home stimulator,
known as a TENS device, that retails at Sears for
$37.99.
“I said you have to be kidding me,” said Weston,
who hired a lawyer and recently had the charges
reduced by about half. “My neck was hurting. I was
still having spasms.”
(Doc. # 1-5 at 3).
The article remarks as to Molina:
Bedridden Client
Jennifer Molina, a 32-year-old mother of three in
Tampa, was on her way to buy diapers when her car
was hit by a drunk driver in June 2007. One of her
passengers called ask-Gary, which resulted in a
visit to Molina’s hospital bed from Winters &
Yonker, a firm with lawyers in the ask-Gary network
that signed her as a client, Molina said.
Her leg, broken in the accident, was repaired with
a metal rod and three screws at the hospital.
After her release, Molina said a Winters & Yonker
legal assistant told her the firm had arranged for
her treatment at Physicians Group. She said she
assumed the visit was a routine follow up.

4

During an examination, a Physicians Group staffer
told her she had tension in her neck and shoulders,
although she said she didn’t complain of pain
anywhere but her leg. Over the next three months,
the clinic treated her neck and back with TENS,
massages, electrical stimulation and heat packs.
She said she liked the massages and thought it was
important to go to the clinics because the law firm
told her to.
‘All Dirtbags’
Molina has filed a confidential complaint against
Winters & Yonker with the Florida Bar association,
which said the “matter is under investigation.” The
law firm and Peter Brudny, Molina’s attorney,
declined to comment on the complaint.
Chiropractors’ bonuses at Physicians Group were
based on how many services they ordered, according
to Lauffer. In one case, he says a supervisor told
him to “give a TENS unit out of every visit.”
(Doc. # 1-5 at 9).1
Plaintiffs contend that Weston’s statement that she was
charged $120.00 for a device that retails at Sears for $37.99
“is a false statement.” (Doc. # 1-1 at ¶ 68). Plaintiffs also

1

In the Complaint, Plaintiffs allege: “Allstate, through
its agents, consciously and willingly worked in concert with
Peter J. Brudny, Esq. (‘Brudny’) to obtain Plaintiffs’ trade
secrets and other confidential and proprietary information and
later disseminate this stolen information and documents, which
had been originally misappropriated by a former employee of
Physicians Group named Jeffery Lauffer.” (Doc. # 1-1 at ¶ 24).
Plaintiffs also allege that “Lauffer, through his attorney
Brudny, threatened to provide the stolen information to the
media and insurance companies unless Physicians Group paid
Lauffer and Brudny $3 million ($3,000,000.00) in exchange for
the stolen information being returned to Physicians Group.”
(Id. at ¶ 26). Plaintiffs refused, and “Brudny made good on
his threats.” (Id. at ¶ 31).
5

assert that the statements in the article “leave the reader
with the implication that Physicians Group was overcharging
its

patients

concerning

and
the

failing

provide

cost

total

to

of

requested
services

updates
charged.

Notwithstanding, Weston has testified under oath that every
time she requested an itemized statement of services from
Physicians Group showing the costs incurred to date she was
provided the same.” (Id. at ¶ 71). The Complaint also alleges
that

“Weston

reporter

for

made
WTSP

false

and

Channel

defamatory

10

News.”

statements
(Id.

at

¶

to

a

147).

Specifically, Plaintiffs allege:
Weston said she was treated for pain in her neck
and back but also received treatments she didn’t
really want stating “Why do we have to do these
five or six things every time I come? I just want
a massage and I just want chiropractic adjustments.
They said, ‘This is what you have to do.’” The
statement that anyone from Physicians Group
required Weston to undertake any modalities that
she refused is false and defamatory to Physicians
Group’s
business
reputation.
Weston
has
subsequently testified under oath that she was free
to refuse any treatment she wanted and in fact did
so refuse treatments that she did not wish to
undergo, which establishes the falsity of the
contrary statement she made to the news media with
knowledge of its falsity.
(Id. at ¶¶ 148-150).
Plaintiffs likewise indicate that “[t]he statement that
Molina did not complain of pain anywhere but her leg is a
total

and

complete

fabrication.
6

Molina’s

own

records

indicate[] that she initially complained about pain in her
neck and shoulder.

Thereafter, her subsequent handwritten

complaints indicate that she continued to complain of pain her
neck and shoulder, as well as headaches and back pain.”
(Id. at ¶ 86).

Molina’s statement that she did not complain

about neck and back pain, but was treated for neck and back
pain “was designed to create a defamatory implication that
Physicians Group was providing unnecessary services while
ignoring its patient’s actual complaints.” (Id. at ¶ 87).
II.

Removal
On

December

11,

2013,

after

being

served

with

the

Complaint on November 11, 2013, Allstate timely removed the
action to this Court on the basis of diversity of citizenship.
(Doc. # 1). In the Notice of Removal, Allstate indicates that
“Plaintiff Gary Kompothecras is a citizen of the State of
Florida” and that “Physicians Group LLC is also a citizen of
the state of Florida.” (Doc. # 1 at ¶ 8).

However, in the

Notice of Removal, Allstate acknowledges that Weston and
Molina “are citizens of the State of Florida,” and, thus, are
not diverse from Plaintiffs. (Id. at ¶ 11).

Allstate argues

in the Notice of Removal: “Weston and Molina were joined in an
improper attempt to defeat federal diversity jurisdiction.”
(Id. at ¶ 3).

7

Plaintiffs seek an Order of remand and an award of
attorneys’ fees for improper removal, arguing that they have
asserted valid claims against non-diverse Defendants Weston
and Molina in the Complaint.2
III.

Fraudulent Joinder
“In a removal case alleging fraudulent joinder, the

removing party has the burden of proving that either: (1)
there is no possibility the plaintiff can establish a cause of
action against the resident defendant; or (2) the plaintiff
has fraudulently pled jurisdictional facts.” Pacheco de Perez
v. AT&T Co., 139 F.3d 1368, 1380 (11th Cir. 1998)(quoting
Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997)(citing
Cabalceta v. Standard Fruit Co., 883 F.2d 1553, 1561 (11th
Cir. 1989)).

“The burden of establishing fraudulent joinder

is a heavy one.

Where a plaintiff states even a colorable

claim against the resident defendant, joinder is proper and
the case should be remanded to state court.”

Id.

“The determination of whether a resident defendant has
been fraudulently joined must be based upon the plaintiff’s
pleadings

at

the

time

of

removal,

2

supplemented

by

any

Plaintiffs do not challenge that the amount in
controversy exceeds the threshold requirement of $75,000. In
seeking an Order of remand, Plaintiffs’ arguments focus on the
validity of the claims asserted against Weston and Molina.
(Doc. # 11 at 3).
8

affidavits

and

deposition

transcripts

submitted

by

the

parties.” Id. The Court must review the factual allegations
in the light most favorable to the plaintiff, and it must
resolve uncertainties about the applicable law in favor of the
plaintiff.

Id.

The fact that the plaintiff may not ultimately prevail
against the resident defendant is of no consequence. Id.

The

role of the court is not to weigh the merits of a plaintiff’s
claim

beyond

the

determination

of

whether

the

claim

is

colorable under state law. Id. at 1380-81 (quoting Crowe, 113
F.3d at 1538).

As stated in Stillwell v. Allstate Insurance

Co., 663 F.3d 1329 (11th Cir. 2011), “all that is required to
defeat a fraudulent joinder claim is a possibility of stating
a valid cause of action.” Id. at 1333 (emphasis added).
IV.

Analysis
In count one of the Complaint, Plaintiffs collectively

allege that Allstate, Bloomberg, and Armstrong misappropriated
Plaintiffs’ trade secrets; in count two Kompothecras alleges
that Bloomberg, Armstrong, and Weston tortiously interfered
with his advantageous business relationship; in count three
Physicians Group alleges Allstate, Bloomberg, and Armstrong
tortiously

interfered

with

its

advantageous

business

relationships; in count four, Plaintiffs assert a claim for

9

libel per se against Armstrong and Bloomberg; in count five,
Plaintiffs assert a claim for libel by implication against
Armstrong and Bloomberg; in count six, Plaintiffs assert a
claim

for

slander

by

implication

against

Armstrong

and

Bloomberg;3 in count seven, Plaintiffs assert a claim for
slander per se against Weston; in count eight, Plaintiffs
assert a claim for slander by implication against Weston; in
count nine, Plaintiffs assert a claim for slander per se
against Molina; in count ten, Plaintiffs assert a claim for
slander by implication against Molina; and in count eleven,
Plaintiffs assert a claim for civil conspiracy against all
Defendants. (Doc. # 1-1).
It is not necessary for the Court to evaluate each of the
claims above.

If even one claim involving either Weston or

Molina as asserted in counts two, seven, eight, nine, ten, or
eleven is colorable, the case must be remanded.
A.

Defamation

Under Florida law, “[d]efamation (libel and slander) may
generally be defined as the unprivileged publication of false
statements which naturally and proximately result in injury to
another.” Byrd v. Hustler Magazine, Inc., 433 So. 2d 593, 595

3

The Complaint improperly labels two counts as “Count V.”
The Court has accordingly renumbered the Complaint counts.
10

(Fla. 4th DCA 1983). As defined by the Florida Supreme Court,
defamation has the following five elements: “(1) publication;
(2) falsity; (3) actor must act with knowledge or reckless
disregard as to the falsity on a matter concerning a public
official, or at least negligently on a matter concerning a
private person; (4) actual damages; and (5) statement must be
defamatory.” Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098,
1106 (Fla. 2008).
A “[c]ommunication that imputes to another conduct,
characteristic, or condition incompatible with the proper
exercise of his lawful business, trade, profession or office
is slander per se.” NITC, LLC v. Baker, 61 So. 3d 1249, 1254
(Fla. 4th DCA 2011).
Here, the Complaint pleads each of the required elements
as to both Weston and Molina.

For instance, in count seven,

Plaintiffs allege Weston stated to a news reporter that
Physicians Group told her “this is what you have to do” when
she did not want to undergo certain treatments.

(Doc. # 1-1

at ¶ 148). However, Weston later testified that she was free
to refuse any unwanted treatments, and that she did, in fact,
refuse certain treatments. (Id. at ¶ 150). The Complaint also
alleges that Weston stated to a news reporter that she had “no
idea

how

much

the

treatments

11

cost”

but

that

she

later

testified that she was provided detailed itemizations of all
costs incurred. (Id. at ¶¶ 151-152).
arguably

incompatible

with

These statements are

Plaintiffs’

lawful

business

enterprise.
The

Complaint

also

alleges

that

Weston’s

published

statements “were false” and “not privileged in any manner.”
(Id.

at

¶¶

statements

153-154).
“were

made

Plaintiffs
with

allege

knowledge

of

that

Weston’s

their

falsity,

reckless disregard for their truth and/or with malice.” (Id.
at ¶ 155).

In addition, the Complaint alleges that Weston’s

statements damaged Physicians Group. (Id. at ¶ 156).
As for Molina, the Complaint alleges that she reported to
the media that she only complained about pain in her leg, but
that Physicians Group treated her neck and back (presumably,
unnecessarily). (Id. at ¶ 172).

However, the Complaint

alleges that Molina’s own notes show that she did complain of
neck, back, and shoulder pain, as well as headaches. (Id. at
¶¶ 86, 173).

As with Weston, the Complaint alleges that

Molina’s published statements, which are incompatible with
Plaintiffs’ lawful business operations, were knowingly false,
not privileged, and caused damage to Physicians Group. (Id. at
¶¶ 174-176).
As stated in Crowe v. Coleman, 113 F.3d 1536, 1542 (11th

12

Cir. 1997), “In the remand context, the district court’s
authority to look into the ultimate merit of the plaintiff’s
claims must be limited to checking for obviously fraudulent or
frivolous claims.

Although we have said that district courts

may look beyond the face of the complaint, we emphasize that
the district court is to stop short of adjudicating the
merits.” Without weighing the merits of the claims, the Court
finds that counts seven and nine, asserted against Weston and
Molina for slander per se, are colorable and are not obviously
fraudulent or frivolous.
In Florence v. Crescent Resources, LLC, 484 F.3d 1293,
1299 (11th Cir. 2007), the court cautioned that “if there is
any possibility that the state law might impose liability on
a resident defendant under the circumstances alleged in the
complaint, the federal court cannot find that joinder of the
resident defendant was fraudulent.” Such a possibility exists
in this case, the Court finds that the slander claims are
colorable, and remand is accordingly warranted.
V.

Costs and Attorneys’ Fees
Plaintiffs request an award of costs and attorneys’ fees,

pursuant to 28 U.S.C. § 1447(c), which provides that when a
court remands a case, the court may award costs and attorneys’
fees incurred as a result of the removal.

13

However, the award

of costs and attorneys’ fees is completely discretionary. See
Publix Supermarkets, Inc. v. United Food & Commercial Workers
Int’l Union, AFL-CIO & CLC, 900 F. Supp. 419, 421 (M.D. Fla.
1995)(citation omitted).
In the case at bar, this Court denies Plaintiffs’ request
for costs and attorneys’ fees.

Allstate had an objectively

reasonable, but ultimately unsuccessful, basis for removing
this action.

Thus, although the Court has determined that it

is appropriate to remand the case, the Court does not find
that an award of costs and attorneys’ fees is warranted.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED
(1)

Plaintiffs Gary Kompothecras and Physicians Group, LLC’s
Motion to Remand (Doc. # 11) is GRANTED.

(2)

Plaintiffs Gary Kompothecras and Physicians Group, LLC’s
request

for

costs

and

attorneys’

fees

for

improper

removal is DENIED.
(3)

The Clerk is directed to REMAND this action to State
Court pursuant to 28 U.S.C. § 1447(c) because this Court
lacks subject matter jurisdiction.

(4)

After remand has been effected, the Clerk shall close the
case.

14

DONE AND ORDERED in Chambers, it Tampa, Florida, this
27th day of February, 2014.

Copies to: Counsel of Record

15