Manor Care-Belden Village of Canton OH, LLC v. Nick H. Johnson, P.C.

Filing 19

Order and Decision granting Plaintiff's motion to remand to state (Doc. # 3 ) court. Judge John R. Adams on 3/10/15. (K,C)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
MANOR CARE-BELDEN VILLAGE
OF CANTON, OH, LLC,
Plaintiff,
vs.
NICK H. JOHNSON, P.C.,
Defendant.

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CASE NO. 5:15CV00310
JUDGE JOHN R. ADAMS

ORDER AND DECISION

Pending before this Court is Plaintiff’s Motion for Remand to State Court. Doc. 3. For
the following reasons, the motion is GRANTED.
I.

FACTS AND PROCEDURAL HISTORY
On February 6, 2015, Plaintiff filed its Complaint and Motion for Temporary Restraining

Order (“TRO”) in the Court of Common Pleas in Stark County, Ohio.

Doc. 1-4.

In its

Complaint, the Plaintiff alleged claims for violation of Ohio’s Deceptive Trade Practices Act and
defamation through libel, libel per se, and false light invasion of privacy.

Doc. 3. Plaintiff

alleges harm to its reputation and good will in the community arising from certain language in
Defendant’s advertisement to attract new clients. The Complaint seeks only injunctive relief,
along with attorney fees and costs. Doc. 3.
On February 18, 2015, Defendant filed its Notice of Removal to federal court based on
diversity jurisdiction. Doc. 1. Plaintiff then filed the underlying motion to remand, arguing that
Defendant has failed to sustain its burden of proof that the amount in controversy exceeds
$75,000. For the foregoing reasons, Plaintiff’s argument is well-taken.

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II.

LEGAL ANALYSIS
“Generally, a civil case brought in a state court may be removed by a defendant to federal

court if it could have been brought there originally.” 28 U.S.C. § 1441(a). A federal district court
has original “diversity” jurisdiction where the suit is between citizens of different states and the
amount in controversy exceeds $75,000, exclusive of costs and interest. 28 U.S.C. 1332(a);
Rogers v. Wal-Mart Stores, Inc. 230 F.3d 868, 871 (6th Cir. 2000). Upon removal, a defendant
bears the burden of proving diversity jurisdiction. Id. (citing Wilson v. Republic Iron & Steel Co.,
257 U.S. 92, 97 (1921)).
Where the plaintiff is not required to state a specific amount of
damages in the complaint, as in Ohio, the defendant must prove
that it is more likely than not that plaintiff's claims meet the federal
amount in controversy requirement. See Gafford v. General Elec.
Co., 997 F.2d 150, 158 (6th Cir.1993). The ability to make such
proof is determined by whether the defendant could have
ascertained from “a fair reading of the complaint or other papers
filed” that the minimum jurisdictional amount existed. McCraw v.
Lyons, 863 F.Supp. 434, 432 (W.D.Ky.1994).
M.D. v. Advanced Medical Optics, Inc. 2009 WL 1314754, at *1 (N.D. Ohio 2009); see also 28
U.S. C. §1446(c)(2)(B).

“Normally, ‘the sum claimed by the plaintiff[s] controls,’ but where

plaintiffs seek ‘to recover some unspecified amount that is not self-evidently greater or less than
the federal amount-in-controversy requirement,’ the defendant satisfies its burden when it proves
that the amount in controversy ‘more likely than not’ exceeds $75,000” Everett v. Verizon
Wireless, Inc., 460 F.3d 818, 822 (6th Cir. 2006) (citing Gafford v. Gen. Elec. Co., 997 F.2d 150,
155 (6th Cir. 1993).
A.

Value of Injunctive Relief from Plaintiff’s Perspective

Defendant argues that it satisfies its burden of proof by evaluating the amount in
controversy requirement from both the Plaintiff’s and Defendant’s perspective.

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From Plaintiff’s

perspective, Defendant argues that, because the Plaintiff is a “skilled nursing facility,” any
alleged “stigmatic and reputational harm” and “loss of business” would naturally exceed
$75,000.

Doc. 7 at 5.

Specifically, Defendant points to published data from the U.S.

Department of Health and Human Services concerning the annual cost of nursing home care to a
single patient in the Canton-Massillon, Ohio and Akron, Ohio. Because these annual costs range
from $69,000 to over $90,000, Defendant argues that the loss of just one patient would more
likely than not result in damages in excess of the jurisdictional limit.
However, as noted by the Plaintiff, this argument is highly speculative. First, the cost
presented is not specific for this Plaintiff’s facility. Furthermore, the numbers reflect costs to the
patient – not the amount of profits lost by the Plaintiff. Finally, Plaintiff does not allege any
particular patients were lost due to the Defendant’s advertisement.

Rather, Plaintiff seeks

injunctive relief to prevent continued harm to its reputation and good will in the community.
Given all of this, Defendant’s argument for damages in excess of $75,000 is speculative
at best and certainly does not meet Defendant’s burden of proof.
B.

Value of Injunctive Relief from Defendant’s Perspective

Defendant next argues that the amount in controversy requirement is satisfied from its
perspective, namely, that Defendant will lose more than $75,000 in future legal fees if it is
enjoined from publishing the advertisement at issue.

To support its argument, Defendant

includes two online articles about jury verdicts against nursing homes in Stark County, which
exceeded $370,000. Doc. 7 at 6, 7.
However, Plaintiff is not seeking an injunction against all future advertising in Ohio by
this Defendant.

Plaintiff is only requesting relief with respect to a single advertisement with

specific, disputed language.

Defendant has presented no explanation or evidence as why it

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cannot attract the same potential clients by publishing advertisements with different language
than the one at issue. It is also speculative as whether Defendant would develop any clients, let
alone successful clients at trial, from the disputed advertisement.

As such, considering the

amount in controversy from the Defendant’s perspective still does not satisfy its burden of
establishing the amount in controversy by a preponderance of the evidence.
C.

Attorney’s Fees

Defendant argues that Plaintiff’s claim for attorney fees exceeds $75,000. Defendant
points to a few awards of attorney fees from around the state of Ohio. However, under the Ohio
Deceptive Trade Practices Act, attorney fees are merely permitted – not required. O.R.C.
4165(B) (“The court may award in accordance with this division reasonable attorney’s fees to the
prevailing party in [a] civil action authorized by …this section….”).

As such, it is mere

speculation that Plaintiff will prevail, that it will be awarded attorney fees, and that the amount of
these fees will exceed $75,000. Again, Defendant fails to establish the amount in controversy
exceeds the threshold amount by a preponderance of the evidence.
III.

CONCLUSION
The Court finds that Defendant Nick H. Johnson, P.C., has not met its burden of proof to

establish all requirements securing federal jurisdiction under 28 U.S.C. §1332. The Court hereby
GRANTS Plaintiff Manor Care-Belden Village of Canton OH, LLC’s motion to remand the case
to state court.
IT IS SO ORDERED.

March 10, 2015

/s/ John R. Adams
JUDGE JOHN R. ADAMS
UNITED STATES DISTRICT COURT

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