(ECF No. 27) Reply in Support of Plaintiff's Motion to Remand and for Costs and Expenses...

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

(Northern Division)

CATHERINE BRENNAN, * Plaintiff, * v. * Civil Case No.: 1:15-cv-02931-JKB JOANNA “JOEY” STEVENSON, * and * TOTALLYHER MEDIA, LLC * Defendants. * * * * * * * * * * * * * *

REPLY IN SUPPORT OF PLAINTIFF’S MOTION TO REMAND AND FOR COSTS AND EXPENSES

Plaintiff Catherine Brennan, by and through her undersigned counsel, respectfully

submits this Reply in Support of Plaintiff’s Motion to Remand and For Costs and Expenses.

(ECF No. 16.)1

I. Defendants Have Not Shown By A Preponderance Of The Evidence That Plaintiff’s Monetary Damages Exceed $75,000

Where a plaintiff disputes whether the amount in controversy requirement has been met,

as Plaintiff does here, the defendant must show “by a preponderance of the evidence that the

amount in controversy exceeds the jurisdictional threshold.” Dart Cherokee Basin Operating

Co., LLC v. Owens, 135 S.Ct. 547, 554 (2014). Defendants have not met this burden.

To establish the amount in controversy, Defendants provide the Court with Ms.

Brennan’s biography showing that she is an attorney, and nine “Verdict and Settlement 1 Defendant Joanna “Joey” Stevenson filed a Memorandum of Law in Opposition to Plaintiff’s Motion to Remand and For Costs and Expenses (the “Opposition”). (ECF No. 25.) Co-Defendant TotallyHer Media, LLC filed a joinder to Ms. Stevenson’s Opposition on October 14, 2015. (ECF No. 26.)

Case 1:15-cv-02931-JKB Document 27 Filed 11/02/15 of 11

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Summaries” reporting jury awards of over $75,000 in defamation actions involving attorney

plaintiffs. Such evidence is insufficient to establish by a preponderance of the evidence that the

amount in controversy in this action exceeds $75,000. Osia v. Rent-a-Center, Inc., 2015 WL

3932416, at *3 (D.Md. June 25, 2015).

In Osia v. Rent-a-Center, Inc., plaintiffs brought a product liability and breach of contract

action after suffering a bedbug infestation caused by a couch purchased from defendant.

Defendant removed the case to federal court, and on a motion to remand, the Court found that

the defendant “offer[ed] no reasonable estimates for any of the likely categories of damages and

costs recoverable in this specific case.” Osia, 2015 WL 3932416, at *5. Rather, the defendant

made “conjectures about a potential recovery . . . by producing docket sheets from cases litigated

in the Circuit Court for Anne Arundel County where recoveries for claims purportedly involving

bedbug infestation exceeded $75,000.” Id. The Court found that defendant “provided no

additional details about those cases or analogized them to the facts here,” and “[m]ore

importantly, evidence of other awards in bedbug infestation cases [did] not provide evidence of

what Plaintiffs likely [would] recover here. To allow removal of this case based on

Defendant’s speculation as to a possible final damage award would eviscerate the amount

in controversy requirement.” Id. (Emphasis added.)

Similarly, in Gallagher v. Federal Signal Corp., the Honorable Deborah K. Chasanow

rejected the defendants’ efforts to establish the amount in controversy by relying on other siren-

induced hearing loss cases in which damages exceeded $75,000. 524 F. Supp. 2d 724, 728

(D.Md. 2007) (“Defendant’s citations are of limited utility, as Defendant does not draw any

meaningful factual parallels between the cited cases and the case at bar. It is unknown how the

extent of Plaintiff’s hearing damage and medical costs compare to the cited cases.”).


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As in Osia and Gallagher, Defendants here do not make any meaningful factual parallels

between the jury awards they are relying upon and this matter. It is notable that only one of the

cases is from Maryland. (Exhibit 10 to the Declaration of Matthew L. Schaffer, Esq. (“Schaffer

Decl.”).) There, the jury awarded only $50,000 in compensatory damages, the remainder of the

damages were punitive. Additionally, in response to a motion for judgment notwithstanding the

verdict or remittitur, the Honorable J. Frederick Motz ordered that the defendant was granted a

new trial unless the plaintiff accepted a remittitur to $20,000 in compensatory damages and

$20,000 in punitive damages. The plaintiff accepted the remittitur. Id.

For the reasons explained by Judge Chasanow, these nine “Verdict and Settlement

Summaries” do not establish by a preponderance of the evidence that Plaintiff’s damages in this

action exceed $75,000.2 For what it is worth, Plaintiff can also provide “Verdict and Settlement

Summaries” involving attorney plaintiffs who recovered compensatory damages of less than

$75,000 for defamation claims. (See Exhibits A-F.) These examples are provided not to

establish the amount of damages likely to be recovered in the action, but simply to demonstrate

that these types of “Verdict and Settlement Summaries” are easily found and do not constitute

credible evidence of the amount in controversy.

II. Rule 2-305 Governs The Court’s Interpretation Of Plaintiff’s Complaint

Rule 2-305 governs the Court’s interpretation of Plaintiff’s complaint and necessarily

leads to the conclusion that Plaintiff is seeking only $70,000 here. As set forth in Plaintiff’s

Motion, pursuant to Gallagher, 524 F. Supp. 2d at 727-728, and Hoang v. Hewitt Ave. Assocs.,

2 The eight out-of-state “Verdict and Settlement Summaries” cited by Defendants are distinguishable because they involve allegations of defamation per se (Schaffer Decl., Exhibits 2 and 6); verdicts combining damages attributable to defamation with damages attributable to other claims (Schaffer Decl., Exhibits 3, 4, 6, 7); harm that more directly affects the plaintiffs’ professional status, such as loss of employment, or allegations that the plaintiff should not be trusted to represent clients and especially not children (Schaffer Decl. 5, 8); or circumstances in which the fact that the plaintiff was an attorney had no bearing on the case whatsoever. (Schaffer Decl. 9.)


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177 Md. App. 562, 589 (2007), and in accordance with Rule 2-305, for purposes of determining

whether the amount in controversy has been met, the “in excess of” language should be read out

of the ad damnum clause, leaving the sum certain of $70,000.

Contrary to Defendants’ assertion, the fact that Rule 2-305 was amended after the

Gallagher decision does not alter the opinion’s persuasiveness or applicability to this matter.

(Opposition, p. 11.) As explained by the Standing Committee on Rules of Practice and

Procedure, Rule 2-305 was amended to eliminate the requirement to plead a sum certain above

$75,000. After the amendment, a sum certain still must be pled if the amount is below $75,000,

in order to clarify whether the case belongs in state District Court or Circuit Court. (Exhibit G,

see Category Nine in the July 26, 2012, letter to the Court of Appeals, and the Reporter’s Note to

the proposed amendment.) Attached hereto as Exhibit H is a copy of the Rules Order adopting

the amended Rule 2-305. This amendment reinforces what Gallagher already determined, an

amount under $75,000 must be read as a sum certain.

Defendants also contend that Maryland Rule 2-305 is inapplicable because the case has

been removed to federal court. (Opposition, p. 11.) Defendants rely on Johnson v. Citibank,

N.A., 63 F.Supp.3d 545, 556 (D.Md. 2014), to assert that once a case is removed to federal court,

Maryland rules no longer apply. The reference to Rule 2-305 is a minor point in the Johnson

opinion. There, the real issue was whether the defendant had provided proper notice of removal

to the Maryland state court. Id. at 547. In Johnson, the defendant removed the case asserting

federal question jurisdiction. Id. at 548. Plaintiff subsequently amended the complaint multiple

times in state court and deleted the federal question in the amended complaints. Id. at 548-49.

Defendant, in an attempt to have the amended complaints stricken so that the complaint with the

federal question would control, argued that the amended complaints failed to comply with Rule


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2-305 by not specifying damages. Id. at 556. The defendant was not citing the rule for a

determination on whether the $75,000 threshold for diversity jurisdiction had been met.3 The

Court noted in passing that the failure to comply with Rule 2-305 did not constitute a reason to

strike the complaint in federal court, but ultimately, the issue was moot because the plaintiff had

filed a later complaint specifying the damages amount. Id.

Here, Rule 2-305 has been raised by Plaintiff to interpret the amount Plaintiff has placed

in controversy, not, as in Johnson, by the defendant to argue that a claim has not been properly

stated. Moreover, it is clear that federal courts do consider state pleading requirements when

determining whether the amount in controversy has been met. For example, 28 U.S.C.

§1446(c)(2)(A)(ii) itself directs a federal court to consider state court rules when making the

amount in controversy determination. The statute permits a notice of removal to assert the

amount in controversy where the “State practice either does not permit demand for a specific

sum or permits recovery of damages in excess of the amount demanded,” neither of which

Maryland state rules permit. See Rule 2-305 and Osia, 2015 WL 3932416, at *3. The United

States District Court for the District of Maryland has repeatedly considered Maryland Rule 2-305

when determining the amount in controversy. See e.g., Thiebolt Ryan P.A. v. Onebeacon

America Ins. Co., 2013 WL 5487937, *1 (D.Md. Oct. 1, 2013) (applying Rule 2-305 and

remanding case where damages alleged in complaint were $74,999.99); Gallagher, 524 F. Supp.

2d at 727-28; Osia, 2015 WL 3932416, at * 3-4. Plaintiff’s complaint seeks a recovery of

$70,000.

3 The Johnson defendant asserted in its opposition to the motion to remand that the Court had diversity jurisdiction, but Judge Grimm denied that argument, as defendant had not raised diversity jurisdiction in the notice of removal and the plaintiff’s operative state court complaint specified only $50,000 in damages. 63 F.Supp.3d at 556-57.


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III. Plaintiff’s Recovery Is Limited To $70,000, Absent an Amendment of the Complaint Contrary to Defendants’ repeated assertions otherwise,4 Plaintiff is limited to a maximum

recovery of $70,000 in this action, absent an amendment of the complaint. “Under Maryland

practice, a party may not obtain more than the amount sought in a complaint.” Osia, 2015 WL

3932416, at *3 (citing Falcinelli v. Cardascia, 339 Md. 414, 423 (1995) (“Defendant is quite

correct in asserting that Maryland case law has uniformly treated the ad damnum as a limitation

on recovery”)); Scher v. Altomare, 278 Md. 440, 442 (1976) (“Of course, the recovery, if any, by

the plaintiff cannot exceed in nature or amount either the damage proved or the sum claimed in

the ad damnum, whichever is the lesser.”); Bijou v. Young-Battle, 185 Md. App. 268, 290-91

(2009) (“[A]s a general rule, a circuit court, in the absence of an amendment to the ad damnum,

commits error by not reducing the judgment to the amount of the ad damnum when the defendant

moves for remittitur that directly attacks that part of the judgment in excess of the ad damnum.’)

Absent an amendment of the complaint, Plaintiff cannot recover more than $70,000, and thus

any assertion that she will recover amounts well above this, and most specifically, above

$75,000, is unfounded.

IV. The Injunctive Relief Requested Does Not Satisfy The Amount In Controversy

Defendants contend that the dollar value of the injunctive relief Plaintiff seeks should be

added to the compensatory damages sought, to bring the total amount sought above $75,000.

(Opposition, p. 7-10.) In her Complaint, Plaintiff prays for entry of “injunctive relief to prevent

continuation of the defamation complained of herein.” (ECF No. 2, Complt. at p. 6.) The value

4 See e.g., Opposition, p. 1 (“she also wants to ensure that she can receive whatever damages a jury might award to her, including damages in excess of $70,000); p. 6 (“Ms. Brennan has expressly alleged that her claim is worth—at the very least—$70,000, but otherwise an amount in excess thereof for the jury to decide.”); p. 7 (“Thus, based only on her own, open-ended monetary demand for whatever more than $70,000 a jury might be willing to award to her for purportedly serious harm to her professional reputation, the actual potential damages in controversy reasonably are understood to exceed $75,000.”); and p. 10 (“neither in her Complaint nor in her motion does she set a ceiling of $70,000 on any recovery”).


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of an injunction for amount-in-controversy purposes is determined “by reference to the larger of

two figures: the injunction’s worth to the plaintiff or its cost to the defendant.” Slumber Parties,

Inc. v. Cooper, 2012 WL 2915110, at *5 (D.Md. July 16, 2012) (quoting JTH Tax, Inc. v.

Frashier, 624 F.3d 635, 639 (4th Cir. 2010)). “More specifically, the relevant inquiry is whether

‘the direct pecuniary value’ of the right the plaintiff seeks to enforce, or the cost to the defendant

of complying with any prospective equitable relief exceeds $75,000.’” Mostofi v. CitiMortgage,

Inc., 2011 WL 4596225, at *3 (D.Md. Sept. 30, 2011) (quoting Lee v. Citimortgage, Inc., 739 F.

Supp. 2d 940, 946 (E.D.Va. 2010)).

When the cost for equitable relief is “‘too speculative and immeasurable to satisfy the

amount in controversy requirement[,]’” the court will not attempt to determine its value. Vargo v.

Delaware Title Loans, Inc., 2010 WL 2998788, at * 2 (D.Md. July 27, 2010) (citing Ericsson GE

Mobile Communications, Inc. v. Motorola Communications & Electronics, Inc., 120 F.3d 216,

221-22 (11th Cir. 1997)).

A. The Cost of An Injunction to Defendants Is Too Speculative To Meet The Amount In Controversy

Focusing first on the cost to the defendants, Defendant Stevenson asserts that the damage

to her constitutional rights if she is forced to comply with the requested injunction exceeds

$5,000.5 (Opposition, p. 9.) However, defamatory speech is not protected by the First

Amendment. See Ashcroft v. Free Speech Coalition, 535 U.S. 234, 245-46 (2002) (“The freedom

of speech has its limits; it does not embrace certain categories of speech, including defamation. .

. .”). Because Defendants have no constitutional right to engage in the complained of speech, to

deprive Defendants of the ability to continue engaging in such speech is not worth a dime.

Absent damage to Defendants’ constitutional rights, the injunction has no cost to the Defendants. 5 Defendant TotallyHer Media, LLC simply joins in Ms. Stevenson’s arguments, making no independent arguments of its own. (ECF No. 26.)


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Moreover, even if the injunction were to deprive the Defendants of a constitutional right

(assuming the complained of speech is not defamatory), Defendants’ alleged harm would still be

too speculative to meet the amount in controversy, as the monetary value of Defendants’

purported constitutional rights cannot be calculated with “dollars and cents.” McGaw v. Farrow,

472 F.2d 952, 954 (4th Cir. 1973).

In McGaw v. Farrow, plaintiffs were soldiers who were denied the right to use a chapel at

a military base for a memorial service and war demonstration. Id. at 953. The plaintiffs admitted

that this denial “did not relate to actual damages, only to ‘symbolic damages’ incapable of being

measured ‘in terms of dollars and cents.’” Id. at 954. The Court held that “a claim not

measurable in ‘dollars and cents’ fails to meet the jurisdictional test of amount in

controversy[,]’” and the plaintiffs could not pursue their claim in federal court. Id.; see also,

Amen v. City of Dearborn, 532 F.2d 554, 559-60 (6th Cir. 1976) (the “right” to live in a “unique”

Muslim neighborhood is clearly “incapable of monetary valuation” and could not support

jurisdiction), repudiated on other grounds, Thomas v. Shipka, 818 F.2d 496 (6th Cir. 1987);

Goldsmith v. Sutherland, 426 F.2d 1395, 1397-98 (6th Cir. 1970) (the right to enter a military

base and distribute leaflets cannot be valued in monetary terms, so appellant failed to prove the

amount in controversy had been met).

On the other hand, cases in which the monetary value of an injunction has been used to

bring the amount in controversy above the $75,000 threshold involve factual scenarios in which

the value of the injunction can be measured in “dollars and cents.” For example, in JTH Tax,

Inc. v. Frashier, 624 F.3d 635, 639 (4th Cir. 2010), the plaintiff suggested valuing the injunction

by “adhering to its regular accounting practice of valuing franchises at 130% of the previous

year’s net receipts,” or by calculating the ongoing diminution in its market credibility, based on


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one fiscal year’s worth of advertising, if the defendant’s conduct continued. Additionally, the

cost to the defendant could be calculated by multiplying the monthly revenue received for

renting an office by a five-year lease term, for a total of $30,000 in lost profits to the defendant.

Id.

Similarly, in Lanham Ford, Inc. v. Ford Motor Co., 101 Fed.Appx. 381, 382 (4th Cir.

2004), the value of the injunctive relief could be calculated. There, the appellant’s right to a

hearing before terminating its franchise could be valued because appellant could operate the

franchise and make sales leading up to the hearing, the appellant had made over $56 million in

sales in a previous year, and the chance to operate the dealership as an ongoing concern, should

appellant prevail at the hearing—all combined to convince the Fourth Circuit that the declaratory

and injunctive relief sought was worth over $75,000. Id. at 383. See also, Mostofi v.

CitiMortgage, 2011 WL 4596225, at * 3 (D.Md. Sept. 30, 2011 ) (District Court determined that

cost to the defendant of declaratory relief claim questioning the legitimacy of a two percent

increase in plaintiff’s home mortgage rate exceeded $75,000 because the value of two percent of

the mortgage over the relevant time period exceeded $75,000.).

Here, the cost to Defendants is too speculative to increase the amount in controversy

above the $75,000 threshold.

B. The Value of the Injunction to Plaintiff Is Too Speculative To Meet The Amount in Controversy

Turning to the value of the injunction to Plaintiff, Defendants contend that a permanent

injunction must be worth at least $5,000. (Opposition p. 8.) This is so, Defendants assert,

because Plaintiff alleges that she suffered $70,000 worth of harm from the time Ms. Stevenson’s

article was published on July 23, 2015, to the time the lawsuit was filed, August 19, 2015, and

thus a permanent injunction must be worth at least $5,000. (Opposition, p. 8-9.) This assertion is


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necessarily premised on a conclusion that the intensity of the harm Ms. Brennan suffered upon

first reading the article, and in the weeks thereafter as others commented on the article, remains

constant as time passes. This assumption has no basis in fact, is entirely speculative, and should

not be considered competent proof of an amount in controversy. The facts presented here are a

far cry from the cases where percentage rates or monthly rental amounts can be discovered and

mathematically calculated to value an injunction. For this reason, there is no need to conduct

discovery in this matter, as the only source of calculating the value of an injunction to Plaintiff is

through Plaintiff’s own testimony about her personal experience. There are no “dollars and

cents” for the Court to consider here, and no documents that can be discovered. The value of the

injunction to Plaintiff is too speculative for the Court to determine, and therefore it should not be

added to the $70,000 in compensatory damages. See Vargo, 2010 WL 2998788, at *2 (motion to

remand granted where even if class action waiver provision was declared invalid, there was no

guarantee that a class action would be filed, or that the damages flowing therefrom would exceed

$75,000, such conjecture could not support the District Court’s jurisdiction). The amount in

controversy is $70,000, period.

V. Plaintiff Is Entitled To Recover Fees And Costs For Defendants’ Improper Removal

Pursuant to 28 U.S.C. § 1447(c), Plaintiff is entitled to recover her costs and actual

expenses, including attorneys’ fees, incurred in connection with Defendants’ improper removal.

It is in the Court’s discretion to award attorneys’ fees when the “removing party lacked an

objectively reasonable basis for seeking removal.” Martin v. Franklin Capital Corp., 546 U.S.

132, 139, 141 (2005). “‘Bad faith is not required; fees may be awarded even if removal is sought

in subjective good faith.’” American Capital Advance, LLC v. Gordon, 2010 WL 5055810, at *2

(D.Md. Dec. 3, 2010) (quoting Miller v. Baker, 2010 WL 3585423, at *1 (W.D.Va. Sept. 9,


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2010)). The amount in controversy here is $70,000. Defendants’ efforts to convince the Court

that Plaintiff’s defamation claim will actually recover a higher amount of monetary damages,

should fail, as should their attempt to calculate a value for the injunctive relief sought. The

amount in controversy is $70,000, plain and simple. This matter does not belong in federal

court, it should not have been removed, and Plaintiff should not have to pay the reasonable

attorneys’ fees and costs incurred as a result of Defendants’ unfounded removal.

CONCLUSION

For the foregoing reasons, Plaintiffs’ Motion to Remand and for Costs and Expenses

(ECF No. 16) should be granted, and the matter remanded to the Circuit Court for Baltimore

City.

Date: November 2, 2015 Respectfully submitted, /s/ James B. Astrachan James B. Astrachan (#3566) Elizabeth A. Harlan (#18285) ASTRACHAN GUNST THOMAS, P.C. 217 East Redwood Street, Suite 2100 Baltimore, Maryland 21202 410.783.3550 telephone 410.783.3530 facsimile [email protected] [email protected] Attorneys for Plaintiff


mailto:[email protected]

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Case 1:15-cv-02931-JKB Document 27-1 Filed 11/02/15 Page 1 of 3

(ECF No. 27) Reply in Support of Plaintiff's Motion to Remand and for Costs and Expenses...

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