Case: 5:21-cv-01134-JRA Doc #: 1 Filed: 06/04/21 1 of 11. PageID #: 1
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`DAVID NUNLEY,
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`Plaintiff,
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`v.
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`ARGOS HEALTH, INC., ET AL.,
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`Defendants.
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF OHIO
`EASTERN DIVISION
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`CASE NO. 5:21-CV-01134
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`NOTICE OF REMOVAL
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`Pursuant to 28 U.S.C. §§ 1332, 1441, and 1446, Defendants Argos Health, Inc. (“Argos”
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`or the “Company”) and David Rothgerber (“Mr. Rothgerber”) (Argos and Mr. Rothgerber are
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`collectively referred to as “Defendants”) hereby file their Notice of Removal to this Court of an
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`action pending against them in the Summit County Court of Common Pleas. Removal is based
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`on the following grounds:
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`1.
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`On or around April 29, 2021, Plaintiff David Nunley (“Plaintiff”) filed a lawsuit
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`against Defendants in the Summit County Court of Common Pleas entitled David Nunley v.
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`Argos Health, Inc., et al., Case No. CV 2021-04-1377 (the “State Court Action”). Plaintiff’s
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`Complaint asserts claims of race and sex discrimination, retaliation, aiding and abetting, and
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`negligent training, retention, and supervision. Copies of the Complaint and Summons are
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`attached as Exhibit A.
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`2.
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`On or after May 5, 2021, Defendant Argos was served with a copy of the
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`Complaint and Summons. See Exhibit A.
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`3.
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`On or after May 5, 2021, Mr. Rothgerber was served with a copy of the
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`Complaint and Summons. See Exhibit A.
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`4.
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`Removal of this action is timely as Defendants filed this Notice of Removal
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`within thirty (30) days of their receipt of the Summons and notice of the State Court Action. See
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`28 U.S.C. § 1446.
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`I.
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`5.
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`Basis for Removal: Diversity Jurisdiction
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`A case may be removed from state to federal court if the case could have
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`originally been brought in the federal forum. See 28 U.S.C. § 1441(a)(5). This is a civil action
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`over which this Court has original jurisdiction under 28 U.S.C. § 1332, diversity of citizenship,
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`and, therefore, may be removed to this Court under 28 U.S.C. § 1441(a)-(b).
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`6.
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`This Court has diversity jurisdiction over this case under 28 U.S.C. § 1332, which
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`requires that: (1) the parties on each side of the case are citizens of different states; and (2) the
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`amount in controversy exceeds $75,000, exclusive of interest and costs. See 28 U.S.C. §
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`1332(a)(1).
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`II.
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`The Citizenship of the Parties is Diverse
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`7.
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`Upon information and belief, and according to Argos’s business records and
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`documents submitted by Plaintiff to Argos in connection with Plaintiff’s employment, Plaintiff is
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`a citizen of the State of Ohio.
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`8.
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`For purposes of diversity jurisdiction, a corporation is a citizen of its state of
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`incorporation and the state of its principal place of business. 28 U.S.C. § 1332(c)(1).
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`9.
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`Defendant Argos is a corporation organized under the laws of the State of
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`Delaware, and its principal place of business is located in Dallas, Texas.
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`10. With the exception of the additional named Defendant, David Rothgerber, there is
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`complete diversity among the parties.
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`2
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`11.
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`The citizenship of Mr. Rothgerber should be disregarded for purposes of
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`determining jurisdiction under 28 U.S.C. § 1441 because the Complaint presents no colorable
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`claim against Mr. Rothgerber, and Plaintiff fraudulently joined Mr. Rothgerber as a Defendant in
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`an apparent effort to defeat the jurisdiction of this Court. The Supreme Court has held that a
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`plaintiff cannot defeat a defendant’s right of removal on the basis of diversity of citizenship by
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`the fraudulent joinder of a non-diverse defendant against whom the plaintiff has no reasonable
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`cause of action. Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97 (1921) (citation omitted);
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`see also Alexander v. Electronic Data Sys. Corp., 13 F.3d 940, 949 (6th Cir. 1994).
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`12.
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`In order to determine whether a non-diverse defendant was fraudulently joined,
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`the Sixth Circuit considers whether the plaintiff has a colorable basis for her/his claim against
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`that defendant. Alexander, 13 F. 3d at 949. A review of the Complaint reveals that Plaintiff has
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`no colorable basis for his Ohio Revised Code chapter 4112 claims for race and sex
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`discrimination, retaliation, and aiding and abetting against Mr. Rothgerber.1
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`13.
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`As an initial matter, Plaintiff filed his Complaint on April 29, 2021. Effective
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`April 15, 2021, Ohio House Bill 352 revised Ohio Revised Code chapter 4112 to eliminate
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`individual liability for supervisors and managers relating to employment discrimination claims
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`under state law. See R.C. §§ 4112.01(A)(2), 4112.02(A), and 4112.08(A) (“no person has a
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`cause of action or claim based on an unlawful discriminatory practice relating to employment
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`described in division (A)(24)(a) of section 4112.01 of the Revised Code against a supervisor,
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`manager, or other employee of an employer unless that supervisor, manager, or other employee
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`is the employer”). It is undisputed that Mr. Rothgerber did not personally employ Plaintiff –
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`1 Upon Removal of the State Court Action, Defendants plan to file a Motion to Dismiss Mr. Rothgerber as a party to
`this action.
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`3
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`rather, Argos employed Plaintiff. Accordingly, there is no colorable basis for his race and sex
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`discrimination claims against Mr. Rothgerber. See id.
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`14.
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`Nowhere in the Complaint does Plaintiff assert he complained to Mr. Rothgerber
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`of alleged discrimination or that Mr. Rothgerber was otherwise made aware of any alleged
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`protected activity. Accordingly, there is no colorable basis for his retaliation claim against Mr.
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`Rothgerber.
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`15.
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`Lastly, Plaintiff asserts Mr. Rothgerber aided and abetted in discriminating
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`against him. (Compl., ¶¶ 56-57.) “Ohio’s courts generally construe aiding and abetting as an
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`intentional act: ‘[O]ne is not an aider and abetter unless he knowingly does something which he
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`ought not to do . . . which assists or tends in some way to affect the doing of the thing which the
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`law forbids.’” Luke v. City of Cleveland, N.D. Ohio No. 1:02CV1225, 2005 WL 2245187, *8
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`(Aug. 22, 2005) (citations omitted). Although there are vague and conclusory allegations
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`directed at Mr. Rothgerber (e.g. “David Rothgerber… continued to target Plaintiff because of his
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`race,” Compl., ¶ 15), and allegations concerning a couple of Mr. Rothgerber’s workplace
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`interactions with Plaintiff, the allegations contained in the Complaint do not state a colorable
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`basis for Plaintiff’s aiding and abetting claim. See, e.g., Caiazza v. Mercy Med. Ctr., 5 Dist. No.
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`2013CA00181, 2014-Ohio-2290, ¶ 28 (complaint failed to state an aiding and abetting claim
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`against individual defendants who were involved in discussions regarding complained of
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`termination decision, agreed with the termination decision, but did not make the termination
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`decision). Plaintiff does not allege that Mr. Rothgerber made discriminatory remarks or
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`demonstrated discriminatory animus, or otherwise knowingly did something he should not have
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`done to aid or assist in discrimination against Plaintiff.
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`4
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`16.
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`Because there are no colorable claims against Mr. Rothgerber, his citizenship
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`should be disregarded for purposes of determining jurisdiction under 28 U.S.C. § 1441 and his
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`presence in this lawsuit cannot prevent removal.
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`17.
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`Because Plaintiff is a citizen of the State of Ohio and Argos is a citizen of the
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`States of Delaware and Texas, complete diversity exists between the relevant parties.
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`18.
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`Defendants are represented by the undersigned counsel in this matter and each
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`Defendant joins in and consents to removal of this action.
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`III. The Amount In Controversy Exceeds $75,000
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`19.
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`The standard for determining whether a plaintiff’s claim meets the amount in
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`controversy is whether the district court finds, by a preponderance of the evidence, that the
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`amount in controversy is greater than $75,000. 28 U.S.C. § 1446(c)(2)(B). A defendant seeking
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`removal need only show that, assuming the plaintiff proves his or her claims, the amount in
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`controversy “more likely than not” exceeds $75,000. See, e.g., Everett v. Verizon Wireless, 460
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`F.3d 818, 822 (6th Cir. 2006) (internal quotation omitted).
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`12.
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`Courts may consider actual/compensatory damages, punitive damages, and, in
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`some cases, attorney’s fees to determine whether the amount in controversy exceeds $75,000.
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`See, e.g., Klepper v. First Am. Bank, 916 F.2d 337, 340-41 (6th Cir. 1990).
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`13.
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`Although Plaintiff’s Complaint does not specifically allege the total damages
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`sought, Plaintiff’s Complaint prays for monetary damages
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`including his
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`lost wages,
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`reinstatement or front pay, lost fringe benefits, statutory damages, emotional distress, and any
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`other compensatory damages, punitive damages, prejudgment interest at the statutory rate, post-
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`judgment interest, interest on unpaid wages pursuant to Ohio Revised Code § 4113.15, attorney’s
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`5
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`fees and costs, and all other relief in which Plaintiff is entitled. (See, Compl., at WHEREFORE
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`clause.)
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`14.
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`Although Defendants oppose Plaintiff’s stated damages, aggregating the damages
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`alleged ensures that the amount in controversy more likely than not exceeds $75,000 as set forth
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`below.
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`1.
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`Lost Wages
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`15.
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`Plaintiff’s claim for lost wages presumably contemplates loss of earnings, front
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`pay, and back pay. Argos’s records indicate that while Plaintiff was employed with Argos, he
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`earned $19.00 per hour. (Declaration of Paige Allen, ¶ 4b, attached as Exhibit B.) During his
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`employment with Argos, from September 16, 2019 through February 24, 2020, Plaintiff’s
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`average weekly earnings were $816.22 (i.e. $18,773.13/23 weeks). (Id.)
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`16.
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`Plaintiff’s employment with Argos ended on February 24, 2020. (Id. at ¶ 4c.)
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`Between February 24, 2020 and June 4, 2021 (the date of this filing), there have been more than
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`66 weeks of possible work had Plaintiff not concluded his employment with Argos. Based on
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`Plaintiff’s previous average weekly earnings, had he remained employed by Argos for the above-
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`mentioned time period and continued to work the same amount as he previously had, he would
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`have earned at least $53,870.52 ($816.22 per week x 66 weeks = $53,870.52).
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`17.
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`The median time from filing to trial in the Northern District of Ohio is 14.1
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`months. U.S N. DIST. CT.
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`-- ANNUAL ASSESSMENT 2018, May 14, 2018,
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`https://www.ohnd.uscourts.gov/sites/ohnd/files/Annual%20Assessment%202018.pdf.2 Assuming
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`2 Given the continued delays to the judicial system caused by the COVID-19 global pandemic, the amount
`of time from filing to trial in this case will likely be longer than the 14.1 month average cited as of May
`14, 2018.
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`6
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`this case goes to trial in approximately 61.3 weeks,3 Plaintiff’s back pay claim will seek at least
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`125 weeks of past wages and benefits. Thus, by the time of trial in this case, the lost wages
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`alleged alone mean that Plaintiff will seek at least $102,027.50 ($816.22 per week x 125 weeks =
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`$102.027.50).
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`18.
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`Several courts have found the amount-in-controversy is satisfied in employment
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`lawsuits with lesser-known damages at the time of removal. In Mitchell v. White Castle Systems,
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`Inc., No. 94-1193, 1996 WL 279863 (6th Cir. May 24, 1996), for example, the court found that
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`the employer met its burden of showing the potential value of the claim, including lost wages
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`and benefits, damages for emotional distress, punitive damages and damages to reputation,
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`would likely exceed the amount in controversy, even though the plaintiff requested less than the
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`jurisdictional amount.
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`2.
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`Emotional Distress
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`19.
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`Plaintiff also claims that he suffered “emotional distress.” (Complaint, at prayer
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`for relief.) The amount of alleged general damages, which include emotional distress, are not
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`specified in the Complaint. However, they are properly considered in calculating the amount in
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`controversy. See Blocker v. PPG Indus., No. 3:17-cv-29-DJH, 2017 WL 3431136, at *3 (W.D.
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`Ky. Aug. 9, 2017).
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`20.
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`To establish the amount of emotional distress damages in controversy, a
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`defendant may introduce evidence of jury verdicts in other cases. Cain v. Hartford Life and Acc.
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`Ins. Co., 890 F. Supp. 2d 1250 (C.D. Cal 2012). Indeed as Simmons v. PCR Technology noted,
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`“emotional distress damages in a successful employment discrimination case may be
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`3 The number of weeks was calculated by multiplying 14.1 months by 4.345 as there is an average of
`4.345 weeks in a month.
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`substantial.” 209 F.Supp.2d 1029, 1034 (N.D. Cal. 2002). Notably, other juries have provided
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`substantial emotional distress awards in employment cases alleging similar claims. See, e.g.:
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` Moorer v. Baptist Mem. Health Care Sys., 398 F.3d 469 (6th Cir. 2005)
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`(affirming $250,000 emotional distress award to plaintiff when employer
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`discharged him due to a perceived disability).
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` Lilley v. BTM Corp., 958 F.2d 746 (6th Cir. 1992) (affirming award of $350,000
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`for emotional damages from defendant-employer’s age discrimination and
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`retaliatory discharge).
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` Fisher v. UPS, 390 Fed. Appx. 465, 471-73 (6th Cir. 2010) (affirming a $300,000
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`emotional distress damages award after plaintiff was terminated and could not
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`find work for one year after termination).
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`21.
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`These high emotional distress awards illustrate how the amount in controversy in
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`this case likely exceeds well over $75,000 based on Plaintiff’s request for general damages
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`alone.
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`3.
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`Attorneys’ Fees
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`22.
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`Plaintiff also seeks attorney’s fees. (Complaint, at prayer for relief.) Requests for
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`attorney’s fees must be taken into account in ascertaining the amount in controversy. Williamson
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`v. Aetna Life Ins. Co., 481 F.3d 369, 377 (6th Cir. 2007) (affirming the “general principle of
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`considering statutorily authorized attorneys’ fees for purposes of establishing jurisdiction”). See
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`Johnson v. City of Clarksville, 256 Fed. Appx. 782 (6th Cir. 2007) (holding that awarding legal
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`fees of $250.00 per hour was reasonable because it did not depart from the prevailing market rate
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`for legal services).
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`24. Defendants anticipate that the parties will likely propound written discovery and
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`that depositions will be taken in this case, and that ultimately Defendants will file a Motion for
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`Summary Judgment. Preparing for and responding to these actions alone are likely to trigger
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`significant attorney’s fees.
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`25.
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`Therefore, if Plaintiff is successful in his claims, he could be entitled to an award
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`of attorney’s fees that itself would “more likely than not” exceed $75,000, as is typical in
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`employment discrimination cases.
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`24. Without making any admission as to the merits or lack thereof of Plaintiff’s
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`claimed damages, based on the prayer for relief contained in Plaintiff’s Complaint, Defendants
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`believe in good faith that Plaintiff’s alleged damages exceed the jurisdictional amount of $75,000
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`set forth in 28 U.S.C. § 1332(a). Plaintiff’s Complaint, therefore, seeks more than $75,000 in
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`damages from Defendants, which satisfies the amount in controversy under 28 U.S.C. § 1332(a).
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`25.
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`Accordingly, this Court has diversity jurisdiction because the relevant parties are
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`citizens of different states and the amount in controversy exceeds $75,000.
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`IV. Venue and Notice
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`26. Venue is proper in this district and in this division pursuant to 28 U.S.C. § 1391.
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`27.
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`This action is not a non-removable action as described in 28 U.S.C. § 1445.
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`28.
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`Promptly after the filing of this Notice of Removal, Defendants will serve written
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`notice of this removal on all parties and file a copy of this Notice of Removal with the Clerk of
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`the Court of the Summit County Court of Common Pleas. A copy of the Notice of Filing Notice
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`of Removal is attached as Exhibit C.
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`WHEREFORE, Defendants respectfully file this Notice of Removal, removing this case
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`from the Summit County Court of Common Pleas to the United States District Court for the
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`Northern District of Ohio, Eastern Division.
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`Respectfully submitted,
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`/s/ Amanda T. Quan _______________________
`Amanda T. Quan (0086623)
`Alexandria A. Gardella (0100000)
`Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
`Key Tower
`127 Public Square, Suite 4100
`Cleveland, OH 44114
`Ph:
`216-241-6100
`Fax:
`216-357-4733
`Email: amanda.quan@ogletree.com
`alexandria.gardella@ogletree.com
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`Attorneys for Defendants
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`10
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`CERTIFICATE OF SERVICE
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`I hereby certify that on June 4, 2021, a copy of the foregoing was electronically filed with
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`the Clerk of Court using the Court’s Electronic Filing System. Notice of this filing will be sent
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`to all parties by operation of the Court’s System, including the following:
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`Stephan I. Voudris
`Christopher M. Sams
`Voudris Law LLC
`8401 Chagrin Road, Suite 9
`Chagrin Falls, Ohio 44023
`svoudris@voudrislaw.com
`csams@voudrislaw.com
`Counsel for Plaintiff David Nunley
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`/s/ Amanda T. Quan
`One of the Attorneys for Defendants
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`47374283.1
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`11
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