Patel v. Aetna, et al
REPORT AND RECOMMENDATION: Magistrate Judge RECOMMENDS 12 MOTION to Remand to State Court be DENIED. Objections to R&R due by 6/6/2017. Signed by Magistrate Judge Kimberly A. Jolson on 5/23/2017. (ew)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
Civil Action 2:17-cv-78
Judge Michael H. Watson
Magistrate Judge Jolson
AETNA, et al.,
REPORT AND RECOMMENDATION
This case is before the Court on Plaintiff’s Motion to Remand. (Doc. 12). For the
reasons set forth below, the Court RECOMMENDS that the Motion to Remand be DENIED.
Plaintiff is a State Tested Nursing Assistant (“STNA”) licensed in Ohio, who claims that
she was improperly denied payment for care she rendered to her mother, Barbara Nagel, as a
provider for Defendants, each of which does business as “aetna.” (See Doc. 7). Although
Plaintiff filed this case in the Court of Common Pleas for Franklin County, Ohio, certain
Defendants filed a Notice of Removal in this Court pursuant to its diversity and federal question
jurisdiction. (See Doc. 1). Plaintiff filed a Motion to Remand (Doc. 12), which is now ripe for
consideration. (See Doc. 17 (Opposition); Doc. 18 (Reply)).
The basis for removing a state court case to federal court “must be disclosed upon the
face of the complaint, unaided by the answer or by the petition for removal.” Gully v. First Nat’l
Bank, 299 U.S. 109, 113 (1936); see also Powell v. Wal-Mart Stores, Inc., No. 14-155-HRW,
2015 WL 2063966, at *3 (E.D. Ky. Apr. 30, 2015) (noting that “jurisdiction is determined at the
time of removal”). Thus, the Court may not consider defenses in deciding if a case may be
removed. See Caterpillar, Inc. v. Williams, 482 U.S. 386, 393 (1987); Loftis v. United Parcel
Serv., Inc., 342 F.3d 509, 515 (6th Cir. 2003). Because removing a case interferes with the state
court’s jurisdiction, removal statutes are construed narrowly. See Long v. Bando Mfg. Co. of
Am., Inc., 201 F.3d 754, 757 (6th Cir. 2000) (stating “removal statutes are to be narrowly
construed” because “they implicate federalism concerns”).
Plaintiff’s claims are for unjust enrichment (Count I), declaratory judgment (Count II),
further relief under Ohio Revised Code § 2721.09 (Count III), further relief in equity (Count IV),
and bad faith with damages (Count V). This Court examines whether it has diversity jurisdiction
or federal question jurisdiction over this case.
The requirements for federal jurisdiction based on diversity of citizenship are set forth in
28 U.S.C. § 1332(a). Diversity is satisfied if no plaintiff and no defendant are citizens of the
same state, and the amount in controversy is $75,000 or greater. See 3LI Consultant Grp. v.
Catholic Health Partners, No. 1:15-cv-455, 2016 WL 246202, at *1 (S.D. Ohio Jan. 21, 2016).
Whether Plaintiff will prevail on her claims is irrelevant for the purposes of determining the
amount in controversy. See Garza v. Bettcher Indus., Inc., 752 F. Supp. 753, 763 (E.D. Mich.
It is sufficient if a fair reading of the Complaint demonstrates that, if Plaintiff is
successful, it is more likely than not that her damages will exceed the required amount. Id.
1. Complete Diversity
According to the briefs, the issue of whether complete diversity exists concerns only
Defendant Aetna Better Health, Inc. (“ABH”). The removing Defendants acknowledge that both
Plaintiff and ABH are citizens of Ohio, but they argue that ABH must be ignored for diversity
purposes because it “was fraudulently and improperly joined for purposes of attempting to defeat
federal diversity jurisdiction.” (Doc. 17 at 1, 3).
When fraudulent joinder is alleged, the Court may “pierce the pleadings” to consider
“summary-judgment-type evidence,” which it evaluates in a manner “akin to that of a Rule
12(b)(6) motion to dismiss,” but “is arguably even more deferential.” Walker v. Philip Morris
USA, Inc., 443 F. App’x 946, 954 (6th Cir. 2011). Construing any contested issues of fact in
Plaintiff’s favor, the Court must determine if the removing Defendants have satisfied their
burden of demonstrating that Plaintiff has no colorable cause of action against ABH. Id. at 951.
Stated differently, the Court must determine if the removing Defendants have demonstrated that
there is no reasonable basis “for predicting that the state law might impose liability” on ABH
under the relevant facts. Alexander v. Elec. Data Sys. Corp., 13 F.3d 940, 949 (6th Cir. 1994)
(quoting Bobby Jones Garden Apartments, Inc. v. Suleski, 391 F.2d 172, 176 (5th Cir. 1968)).
In the Motion to Remand, Plaintiff asserts that “aetna” does “business in Ohio through
ABH.” (Doc. 12 at 9). Additionally, Plaintiff asserts that “Defendants’ failure to comply with
Ohio Revised Code § 1329.01 and Defendants’ judicial admission that ‘aetna’ is a fictional ‘nonjural’ entity . . . creates an issue of fact rather than conclusively establishing such a fact.” (Doc.
18 at 5 (emphasis in original)). Plaintiff asserts that her claim for declaratory relief seeks a
determination if “aetna” and ABH “are one in the same doing business in Ohio. . . .” (Id.).
Thus, Plaintiff claims that whether ABH is a party in interest to the state law claims is a factual
question for the state court and not a jurisdictional question to be resolved here.
This Court disagrees. At base, Plaintiff’s claims concern an alleged improper denial of
compensation for services she provided to her mother and the subsequent termination of those
services. She omits any facts that connect ABH to those claims, alleging generally that ABH
may have conducted business in Ohio under a fictitious name. However, Defendants provide
evidence that Plaintiff has no colorable claim against ABH concerning the alleged denial of
compensation or termination of her services because ABH is a Medicaid HMO with no
connection to Plaintiff, her mother, or the Medicare plan that provides coverage to her mother.
(See Doc. 1-4 (declaration of Michael C. McNamara) and Doc. 1-5 (ABH’s Articles of
Plaintiff claims otherwise, insisting on a dispute of fact arising from ABH being a “nonjural” entity—an entity that cannot sue or be sued. See, e.g., Picone v. United States Marshal
Service, No. 4:15-cv-2033, 2016 WL 5118303, at *3 (N.D. Ohio Sept. 21, 2016). Although
Plaintiff complains of ABH’s alleged violation of Ohio Revised Code § 1329.01, that provision
merely provides definitions of “trade name,” “fictitious name,” and “person,” and explains the
procedure for registering a trade name and reporting the use of a fictitious name. It does not
create a private right of action.
See O.R.C. § 1329.01.
Accordingly, Plaintiff’s general
allegation concerning a “failure to comply with Ohio law” arising from a failure to register
tradenames or fictitious names does not demonstrate that she has a colorable cause of action
against ABH. (Doc. 18 at 5).
Based on the evidence provided by Defendants, there is no reasonable basis to predict
that the state law might impose liability on ABH. See, e.g., Jones v. Woodmen Acc. & Life Co.,
112 F. Supp. 2d 676, 679 (N.D. Ohio Aug. 3, 2000) (finding fraudulent joinder where defendant
had no personal involvement in the events giving rise to the complaint).
Thus, ABH was fraudulently joined, and it must be ignored for diversity purposes. Latimore v.
State Farm Fire & Cas. Co., No. 1:11CV272, 2011 WL 2669366, at *3 (N.D. Ohio July 7,
2011). Consequently, complete diversity exists.
2. Amount In Controversy
The amount in controversy required for diversity jurisdiction—$75,000 or greater—
generally does not include interest, costs, or attorney’s fees. See 28 U.S.C. § 1332(a); see, e.g.,
Torres v. State Farm Mut. Auto. Ins. Co., 478 F. Supp. 2d 924, 927–28 (E.D. Mich. Mar. 14,
2007). However, punitive damages may be included in the calculation. Hayes v. Equitable
Energy Res. Co., 266 F.3d 560, 572 (6th Cir. 2001). More specifically, unless it is a “legal
certainty” that punitive damages cannot be recovered, the Court must consider such damages
when examining the jurisdictional amount. Id. (citing Holley Equip. Corp. v. Credit Alliance
Corp., 821 F.2d 1531, 1535 (11th Cir. 1987)). Defendants bear the burden of proving they have
satisfied the amount-in-controversy requirement by a preponderance of the evidence. Rogers v.
Wal-Mart Stores, Inc., 230 F.3d 868, 871 (6th Cir. 2000).
Plaintiff argues that remand is warranted because her claim at the time of removal was
for $25,000, which is below the $75,000 required for removal based on diversity jurisdiction.
(Doc. 12 at 9). However, Plaintiff seeks in excess of $25,000 in Count I; in excess of $25,000
and an “award of punitive and exemplary damages in the amount equal to at least three (3) but no
greater than (10) times the amount of compensatory damages” for bad faith in Count III, or
Count IV alternatively; and in excess of $25,000 and an award of “exemplary punitive damages
in at least three (3) times but not greater than (10) times the amount of compensatory damages”
on Count V. (Doc. 7 at 12–14). Thus, the amount in controversy is satisfied based on the plain
language of the Complaint. (See id.).
Based on the foregoing, the Court finds that complete diversity exists and the amount in
controversy is satisfied; thus, diversity jurisdiction exists. Having found that it has jurisdiction
over the instant dispute, the Court need not consider the parties’ arguments concerning federal
Based upon this Court’s findings that complete diversity exists and the amount in
controversy is satisfied, the Court RECOMMENDS that Plaintiff’s Motion to Remand be
DENIED. (Doc. 12).
Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen
days 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).
IT IS SO ORDERED.
Date: May 23, 2017
/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE
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