United States District Court, S.D. Ohio, Eastern Division
OPINION AND ORDER
L. GRAHAM, UNITED STATES DISTRICT JUDGE
an action filed by Christian Borda, a pro se
litigant currently incarcerated in FCI Oakdale, Oakdale,
Louisiana. The defendants are Timberwolf Litigation and
Research Services (“Timberwolf”), Dennis Hartley,
an attorney and general counsel at Timberwolf, Ken Payne, an
employee in Administration at Timberwolf, and James Houk, an
investigator at Timberwolf. Plaintiff's complaint alleges
that defendants made misrepresentations and engaged in
deceptive acts in violation the Ohio Consumer Sales Practices
Act (“OCSPA”), Ohio Rev. Code §1345.02.
alleges that he retained the services of Timberwolf to
prepare a motion under 28 U.S.C. §2255 on his behalf.
Plaintiff further alleges that Timberwolf falsely represented
that it had experienced attorneys, but that the defendants
failed to file a §2255 motion by the due date, June 26,
2018. In a declaration attached to the complaint, plaintiff
states that by December 4, 2017, a family member paid $2, 500
as a down payment toward the $7, 500 cost for these services,
and that an additional $2, 000 was paid after plaintiff
authorized the release of his legal files to Timberwolf.
Plaintiff claims compensatory damages in the amount of $4,
600 paid to Timberwolf (the complaint does not indicate when
the additional $100 was paid), and an additional amount of
$10, 000 for unspecified expenses consisting of the
“cost of documentation and expenses.” Plaintiff
also asserts a claim for punitive damages in an unspecified
October 15, 2018, the magistrate judge issued a show cause
order (Doc. 3) directing plaintiff to show cause within
twenty-one days why this action should not be dismissed for
lack of subject matter jurisdiction. The magistrate judge
concluded that plaintiff's allegations of $14, 600 in
compensatory damages and his conclusory requests for punitive
damages and costs failed to satisfy the amount in controversy
requirement of $75, 000 necessary for jurisdiction under 28
U.S.C. §1332(a). On November 6, 2018, plaintiff filed a
response to the show cause order. Doc. 4. Plaintiff summarily
alleges that the combination of his actual damages, punitive
damages and attorney fees will exceed the jurisdictional
defeat diversity jurisdiction, ‘[i]t must appear to a
legal certainty that the claim is really for less than the
jurisdictional amount.'” Charvat v. GVN
Michigan, Inc., 561 F.3d 623, 628 (6th Cir.
2009)(quoting St. Paul Mercury Indem. Co. v. Red Cab
Co., 303 U.S. 283, 289 (1938)); see also Saglioccolo
v. Eagle Ins. Co., 112 F.3d 226, 232 (6th Cir. 1997).
“Generally, the amount claimed by the plaintiff in the
complaint rules, as long as claimed in good faith[.]”
Charvat, 561 F.3d at 628; Jones v. Knox
Exploration Corp., 2 F.3d 181, 182 (6th Cir. 1993).
Dismissal is proper if the amount alleged in the complaint
was never recoverable in the first instance, such as where
applicable law bars the type of damages sought by plaintiff.
Id.; see also Kovacs v. Chesley, 406 F.3d
393, 396 (6th Cir. 2005)(noting that most courts have found a
legal certainty that more than the jurisdictional amount
could not be recovered only where the applicable state law
barred the type of damages sought by plaintiff). In
determining whether the amount-in-controversy requirement has
been met, punitive damages must be considered unless it is
apparent to a legal certainty that punitive damages cannot be
recovered. Hayes v. Equitable Energy Resources Co.,
266 F.3d 560, 572 (6th Cir. 2001). In a diversity case, this
court must apply the substantive law of the forum state; in
this case, the substantive law of Ohio governs. Lutz v.
Chesapeake Appalachia, L.L.C., 717 F.3d 459, 464 (6th
Cir. 2013); Armisted v. State Farm Mut. Automobile Ins.
Co., 675 F.3d 989, 995 (6th Cir. 2012).
violations consisting of an act prohibited under
§1345.02, a consumer in an individual action may
“recover the consumer's actual economic damages
plus an amount not exceeding five thousand dollars in
noneconomic damages.” Ohio Rev. Code §1345.09(A).
For violations consisting of an act or practice previously
declared to be deceptive or unconscionable by rule or court
decision, the consumer may recover “three times the
amount of the consumer's actual economic damages ... plus
an amount not exceeding five thousand dollars in noneconomic
damages.” Ohio Rev. Code §1345.09(B). Taking into
account the $400 filing fee paid in this action, plaintiff
has claimed, at most, $15, 000 in compensatory damages and
costs. The complaint does not allege the existence of a prior
rule or court decision holding the practices alleged in the
instant case to be deceptive or unconscionable. If it is
assumed that §1345.09(B) applies in this case, plaintiff
would be entitled to recover three times $15, 000, or $45,
000, in actual economic damages.
has claimed punitive damages in an unspecified amount. The
court must consider the ability of the plaintiff to recover
punitive damages unless it appears to a legal certainty that
punitive damages cannot be recovered. Smith v. Nationwide
Property & Cas. Ins. Co., 505 F.3d 401, 408 (6th
Cir. 2007). Under Ohio law, punitive damages are not
“actual damages.” Whitaker v. M.T.
Automotive, Inc., 111 Ohio St.3d 177, 183 (2006). In
Whitaker, the court examined a prior version of
§1345.09(A) which permitted a consumer to “rescind
the transaction or recover his damages” and concluded
from the use of the general word “damages”
without any modifier that the statute was broad enough to
encompass an award of punitive damages. However, in response
to this decision, the Ohio legislature amended
§1345.09(A) and (B) to permit “actual economic
damages” together with “an amount not exceeding
five thousand dollars in noneconomic damages.”
See 151 v S 177, effective October 31, 2007. These
changes effectively placed a cap of $5, 000 on punitive and
other noneconomic damages.
also indicates that he intends to claim attorney fees, but
plaintiff filed the instant case himself without the
assistance of counsel. He did not assert a claim for attorney
fees in his complaint. The OCSPA permits an award of attorney
fees. See Ohio Rev. Code §1345.09(F). However,
the Ohio Supreme Court has consistently held that a pro
se litigant is not entitled to an award of attorney
fees. See State ex rel. Want v. Conrad, 74 Ohio
St.3d 681, 684 (1996); State ex rel. Thomas v. Ohio State
Univ., 71 Ohio St.3d 243, 251 (1994). See also
Daniel v. Daniels, 162 Fed.Appx. 288, 291 (5th Cir.
2006)(attorney fees do not count toward the jurisdictional
amount where plaintiff is proceeding pro se;
attorney fees are not available to a pro se
litigant); Lamb v. Amalgamated Labor Life Ins. Co.,,
602 F.2d 155, 160 n. 5 (8th Cir. 1979)(complaint failed to
state a claim for the requisite amount in controversy where
plaintiff, as a pro se litigant, was not entitled to
attorney fees). The court has found no Ohio cases holding
that §1345.09(F) authorizes an award of attorney fees to
a pro se litigant. Plaintiff notes that he paid
$100, 000 to counsel in his criminal trial and $100, 000 to
the attorney who represented him in his criminal appeal.
Those amounts bear no relationship to plaintiff's claims
against the named defendants and are not recoverable in the
on the allegations in the complaint, the most that plaintiff
can recover under the OCSPA is $50, 000, which falls short of
the $75, 000 amount-in-controversy requirement. Because this
court lacks subject matter jurisdiction over plaintiff's
complaint, this action is dismissed.
Plaintiff also indicated a willingness
to assert a due process claim under 42 U.S.C. §1983.
However, to state a claim under §1983, plaintiff must
allege the deprivation of a right secured by the Constitution
or laws of the United States committed by a person acting
under color of state law. Harbin-Bey v. Rutter, 420
F.3d 571, 575 (6th Cir. 2005). Plaintiff does not allege that
any of the defendants were state actors.
Even if plaintiff's complaint is
broadly construed as asserting a common law claim for fraud,
the complaint contains no allegations sufficient to show that
plaintiff would be entitled to punitive damages under Ohio
Rev. Code §2315.21. See Hanna v. Drobnick, 514
F.2d 393, 398-99 (6th Cir. 1975)(punitive damages can only be
considered in the jurisdictional amount if the
alleges facts which show willful and malicious
behavior, citing federal and Ohio cases); see also
Charvat v. Echostar Satellite, LLC, 630 F.3d 459, 462-63
(6th Cir. 2010)(noting, in context of amount-in-controversy
inquiry, that “Charvat's pleadings leave it unclear
whether he has ‘plausibl[y]' made sufficient
allegations to satisfy [the Ohio law ...