Antitrust Law Daily Wrap Up, ADVERTISING—S.D. Ohio: Skilled nursing facility’s false advertising claims remanded to state court, (Feb 18, 2015)

By Greg Hammond, J.D.

A skilled nursing facility that filed a false and deceptive advertisement case against an Ohio law firm in Ohio state court successfully challenged the amount-in-controversy that the law firm asserted in its notice of removal. Because the firm did not present any evidence that the value of injunctive relief and attorney fees in this case exceeded $75,000, the federal district court in Cincinnati determined that the firm failed to meet its burden of proof, compelling the court to grant the nursing facility’s motion to remand (Heartland-Mt. Airy of Cincinnati OH, LLC v. Nick H. Johnson, P.C., February 17, 2015, Black, T.).

Skilled nursing facility Heartland-Mt. Airy of Cincinnati OH, LLC filed suit against Ohio law firm, Nick H. Johnson, P.C. (Johnson), alleging that Johnson placed false and deceptive advertisements in the Cincinnati Enquirer, both online and in print. The advertisements stated that Heartland “has been cited for multiple deficiencies” and that the deficiencies “are known to cause severe injury, health deterioration, bedsores and even death.”

Heartland claimed, in the Hamilton County Court of Common Pleas in Ohio, that the advertisements, which listed seventeen categories of deficiencies and the dates of the citations, were false and misleading because they did not disclose that most of the alleged citations did not cause harm to any patients. Heartland is seeking injunctive relief and attorney fees, but has not requested monetary damages. In February 2015, Johnson filed a notice of removal to the federal district court in Cincinnati. In opposition, Heartland expressly challenged the amount-in-controversy allegation in Johnson’s notice of removal.

Specifically, Heartland argued that Johnson failed to demonstrate by a preponderance of the evidence that the value of the requested injunctive relief and attorney fees exceeds $75,000. Conversely, Johnson argued that a fair reading of the complaint and other evidence in the record proved that the amount in controversy exceeds $75,000.

The court agreed with Heartland, finding that Johnson failed to present any evidence to substantiate its amount-in-controversy allegation. Consequently, the court concluded that, given Johnson’s failure to provide any proof that the amount-in-controversy exceeds $75,000, it had no basis to determine whether diversity jurisdiction was proper. The court therefore granted Heartland’s motion to remand.

The case number is 1:15-cv-86.

Attorneys: J. Randall Engwert (Anspach, Meeks, Ellenberger LLP) and Robert M. Anspach (Robert M. Anspach Associates) for Heartland-Mt. Airy of Cincinnati OH, LLC. Michelle Lynn Gorman (Mannion Gray Law) for Nick H. Johnson, P.C.

Companies: Heartland-Mt. Airy of Cincinnati OH, LLC; Nick H. Johnson, P.C.

Cases: Advertising StateUnfairTradePractices OhioNews