IN THE UNITED STATES DISTRICT COURT MIDDLE · PDF file · 2015-10-153 Plaintiff...

IN THE UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

MMM, LLC, )

)

Plaintiff, )

)

v. ) Case No. ____________

)

ETERNITY MANAGEMENT, INC., )

ETERNITY MANAGEMENT, LLC, )

OKLAHOMA MEN’S CLINIC – )

OKLAHOMA CITY, LLC, )

OKLAHOMA MEN’S CLINIC – )

TULSA, LLC, )

KANSAS MEN’S CLINIC – )

WICHITA, LLC, and )

GREGORY G. BERENATO, )

)

Defendants. )

DEFENDANTS’ NOTICE OF REMOVAL

PLEASE TAKE NOTICE that pursuant to 28 U.S.C. §§ 1332 and 1446, Defendants

Eternity Management, Inc, Eternity Management, LLC, Oklahoma Men’s Clinic – Oklahoma

City, LLC, Oklahoma Men’s Clinic – Tulsa, LLC, Kansas Men’s Clinic – Wichita, LLC and

Gregory G. Berenato hereby give Notice of Removal of the above-captioned action, Case No.

15-995-BC pending in the Chancery Court for Davidson County, Tennessee, to the United States

District Court for the Middle District of Tennessee, Nashville Division. In support of removal,

Defendants state as follows:

1. This Notice of Removal is timely filed pursuant to 28 U.S.C. § 1446(b) in that it

is being filed within thirty (30) days of September 13, 2015, the date Gregory G. Berenato,

individually as a Defendant and as the registered agent for certain of the entity Defendants,

Case 3:15-cv-01086 Document 1 Filed 10/12/15 of 11 PageID #: 1

2

received a copy of the initial pleading setting forth the claim for relief upon which the action is

based.

2. Pursuant to 28 U.S.C. § 1441(a), the removal of this action to this Court is proper

as this Court sits in the judicial district and division embracing the place where the action is

pending. See 28 U.S.C. § 123(b)(1) (stating that the Middle District of Tennessee, Nashville

Division, embraces Davidson County, Tennessee).

3. Pursuant to 28 U.S.C. § 1446(a), copies of all process and pleadings that have

been served upon the Defendants are attached hereto as Exhibit 1.

4. Pursuant to 28 U.S.C. § 1446(d), a copy of this Notice of Removal is being filed

with the Chancery Court for Davidson County, Tennessee.

5. By filing this Notice of Removal, the Defendants do not waive any available

defenses including, without limitation, the defense of lack of personal jurisdiction.

6. As evidenced by the signatures of their counsel below, all Defendants consent to

the removal of this action to the United States District Court for the Middle District of

Tennessee, Nashville Division.

JURISDICTION

This Court has original jurisdiction over this action pursuant to 28 U.S.C. § 1332.

A. Diversity of Citizenship

1. Plaintiff MMM, LLC

Diversity of citizenship is determined based on the facts as they existed at the time of the

commencement of the action. Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 571

(2004). A limited liability company has the citizenship of each of its members. Delay v.

Rosenthal Collins Group, LLC, 585 F.3d 1003, 1005 (6th Cir. 2009). In the Verified Complaint,


3

Plaintiff MMM, LLC does not state the citizenship of each of its members. Upon information

and belief, Plaintiff MMM, LLC has two members, Evan Bass and Dr. Larry Mitchell.

(Affidavit of Gregory G. Berenato, ¶ 5) Further upon information and belief, both Evan Bass

and Dr. Larry Mitchell are citizens and residents of the State of Tennessee. (Id., ¶¶ 6-7)

Accordingly, Plaintiff MMM, LLC is a citizen of the State of Tennessee.

2. Defendant Gregory Berenato

The Complaint alleges that Defendant Berenato is an individual who resides in the State

of Tennessee. This is not correct. On August 19, 2015, the date this action was commenced,

Defendant Berenato was a citizen and resident of Tulsa County, Oklahoma. (Berenato Aff., ¶ 2)

Defendant Berenato remains a citizen and resident of Tulsa County, Oklahoma, and intends to

make his home there indefinitely. (Id.) Defendant Berenato was personally served with process

in this action in Tulsa County, Oklahoma. (Id. at ¶ 3) Defendant Berenato is a citizen of, and

domiciled in, Tulsa County, Oklahoma.

3. Defendant Eternity Management, LLC

Defendant Berenato is the sole member of Defendant Eternity Management, LLC.

(Berenato Aff., ¶ 4). For purposes of diversity of citizenship, Defendant Eternity Management,

LLC is a citizen of Oklahoma. See Delay, 585 F.3d at 1005.

4. Defendant Oklahoma Men’s Clinic – Oklahoma City, LLC

Defendant Berenato is the sole member of Defendant Oklahoma Men’s Clinic –

Oklahoma City, LLC. (Berenato Aff., ¶ 4). For purposes of diversity of citizenship, Defendant

Oklahoma Men’s Clinic – Oklahoma City, LLC is a citizen of Oklahoma. See Delay, 585 F.3d

at 1005.


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5. Defendant Oklahoma Men’s Clinic – Tulsa, LLC

Defendant Berenato is the sole member of Defendant Oklahoma Men’s Clinic – Tulsa,

LLC. (Berenato Aff., ¶ 4). For purposes of diversity of citizenship, Defendant Oklahoma Men’s

Clinic – Tulsa, LLC is a citizen of Oklahoma. See Delay, 585 F.3d at 1005.

6. Defendant Kansas Men’s Clinic – Wichita, LLC

Defendant Berenato is the sole member of Defendant Kansas Men’s Clinic – Wichita,

LLC. (Berenato Aff., ¶ 4). For purposes of diversity of citizenship, Defendant Kansas Men’s

Clinic – Wichita, LLC is a citizen of Oklahoma. See Delay, 585 F.3d at 1005.

7. Defendant Eternity Management, Inc.

Defendant Eternity Management, Inc. is a corporation organized under the laws of the

State of Tennessee and having a principal place of business in Tulsa, Oklahoma. (Complaint, ¶

6; Berenato Aff., ¶ 8) Defendant Eternity Management, Inc. is therefore a citizen of both

Tennessee and Oklahoma. If Defendant Eternity Management, Inc. had been properly joined as

a party to this action, complete diversity would not exist, because Plaintiff also is a citizen of

Tennessee. But the citizenship of Defendant Eternity Management, Inc. should not be

considered in determining whether there exists diversity of citizenship, because Defendant

Eternity Management, Inc. was fraudulently joined as a party to this action.

Where a non-diverse party has been joined as a defendant, the removing defendants may

avoid remand only by demonstrating either: (1) the existence of a substantial federal question or

(2) that the non-diverse party was fraudulently joined. Jerome-Duncan, Inc. v. Auto-By-Tel,

L.L.C., 176 F.3d 904, 907 (6th Cir. 1999). To show that a party was fraudulently joined, the

removing defendants must show that there is no colorable cause of action against that party.

Chambers v. HSBC Bank USA, N.A., 796 F.3d 560, 564 (6th Cir. 2015). In other words, the


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removing parties must present sufficient evidence to show that a plaintiff could not have

established a cause of action against the non-diverse defendants under state law. Id. at 564-565.

The question for the Court is whether there is “arguably a reasonable basis for predicting that the

state law might impose liability on the facts involved.” Id. at 565-566, quoting Alexander v.

Elec. Data Sys. Corp., 13 F.3d 940, 949 (6th Cir. 1994).

The Complaint alleges only one claim for relief against Eternity Management, Inc. –

confirmation of an arbitration award. (See Complaint, pg. 11) There is no reasonable basis for

predicting that Tennessee state law would permit the confirmation of an arbitration award against

Eternity Management, Inc., because no such award exists. The purported arbitration award

attached as Exhibit 2 to the Complaint awards no relief against Eternity Management, Inc. The

caption of the award is styled MMM, LLC v. Eternity Management, LLC d/b/a Arkansas Men’s

Clinic. (See Complaint, Exh. 2). At pages 4 and 5, the purported arbitration award describes the

respondent as “Eternity Management, LLC.” At page 7, the arbitrator purports to award

damages only against “Respondent ETERNITY MANAGEMENT, LLC.” No relief whatsoever

is awarded against Eternity Management, Inc. There is no arbitration award against Eternity

Management, Inc. that can be confirmed.

Moreover, Plaintiff MMM, LLC is not entitled to confirmation of the arbitration award

against Eternity Management, LLC, or any other entity. The arbitration award is void because

the party against which relief is purportedly awarded - Eternity Management, LLC - never

agreed to resolve any dispute with MMM, LLC through arbitration. The parties that signed the

contract attached as Exhibit 1 to the Complaint are Eternity Management, Inc. and MMM, LLC.

Those are the only parties in this case that agreed to resolve any of their disputes by arbitration.

Eternity Management, LLC, the only party against which relief is awarded in the purported


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arbitration award, did not consent to or participate in the arbitration. Defendants are aware of no

authority for a Tennessee court to confirm an arbitration award in which the arbitrator decides by

fiat that a party that did not agree to, consent to or participate in arbitration is the “real party in

interest” and awards relief against that party.

Brown v. Styles, 2011 WL 3655158 (Tenn. Ct. App. 2011) is on point. In Brown,

GutterShutter of Nashville, LLC (“GutterShutter”) and the Styleses entered into a contract for the

installation of a gutter system on the Styles’ home. Id. at *1. The contract provides that all

claims arising out of the contract will be settled by binding arbitration. Id. Lee Brown was the

sole owner of GutterShutter. Id. He did not sign the contract individually, and his name does

not appear anywhere in the contract. Id.

After installation of the gutter system by GutterShutter, water began to flow into the

Styles’ home, causing damage. Brown, 2011 WL 3655158 at *1. In August 2008, GutterShutter

was administratively dissolved. Id. In September 2008, the Styleses demanded arbitration

against both GutterShutter and Brown. Id. Neither Brown nor GutterShutter responded to the

demand for arbitration or participated in the arbitration hearing. Id. In March 2009, the

arbitrator entered an arbitration award against both Brown and GutterShutter. Id. at *2. The

arbitrator found that GutterShutter “failed to maintain the proper corporate form,” and concluded

that Brown was individually liable for the Styles’ damages. Id.

Brown filed a petition to vacate the arbitration award against him individually because he

was not a party to the contract and therefore not bound by the arbitration provision. Brown, 2011

WL 3655158 at *2. The Styleses filed a counterclaim to confirm the arbitration award. Id. The

trial court confirmed the arbitration award against both GutterShutter and Brown, and Brown

appealed. Id.


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The Tennessee Court of Appeals reversed the trial court’s confirmation of the arbitration

award against Brown. Brown, 2011 WL 3655158 at *3. The Court of Appeals recited that

arbitration is a matter of contract, and an arbitration clause does not bind one not a party to the

contract. Id. The trial court held that, even though GutterShutter was administratively dissolved,

the trial court lacked subject matter jurisdiction to enforce the arbitration award against Brown

because Brown was not a party to the contract requiring arbitration and did not otherwise consent

to arbitration. Id. at *4, citing Tenn. Code Ann. § 29-5-302(b) (“The making of an agreement

described in this section providing for arbitration in this state confers jurisdiction on the court to

enforce the agreement under this part and to enter judgment on an award thereunder.”)

The facts of this case are on all fours with Brown. Like in Brown, Plaintiff MMM, LLC

sought an arbitration award against Eternity Management, LLC, a party that did not sign a

contract containing an arbitration clause and that did not otherwise agree to arbitration. Like in

Brown, the arbitrator decided that he could award relief against Eternity Management, LLC

despite that Eternity Management, LLC did not agree to arbitration because the arbitrator

unilaterally determined that Eternity Management, LLC is the “real party in interest.” Like in

Brown, the purported arbitration award against Eternity Management, LLC, which did not

consent to or participate in arbitration, is void. Under the authority of Brown, a Tennessee court

would decline to confirm the purported arbitration award against Eternity Management, LLC.

An additional reason that a Tennessee court would decline to enforce the purported

arbitration award against Eternity Management, LLC is that Eternity Management, LLC was not

properly personally served with notification of the time and place for the arbitration hearing

pursuant to Tennessee Code Annotated Section 29-5-306. Tennessee Code Annotated Section

29-5-306 provides in relevant part:


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Unless otherwise provided by the agreement:

(1) The arbitrators shall appoint a time and place for the hearing and cause notification to

the parties to be served personally or by registered mail not less than five (5) days before

the hearing. Appearance at the hearing waives such notice. The arbitrators may adjourn

the hearing from time to time as necessary and on request of a party and for good cause,

or upon their own motion may postpone the hearing to a time not later than the date fixed

by the agreement for making the award unless the parties consent to a later date. The

arbitrators may hear and determine the controversy upon the evidence produced,

notwithstanding the failure of a party duly notified to appear. The court on application

may direct the arbitrators to proceed promptly with the hearing and determination of the

controversy;

…

The purported arbitration award recites the following regarding the purported attempts to

notify Eternity Management, LLC of the hearing:

(See Complaint, Exh. 2, pg. 3) The purported arbitration award does not show that Eternity

Management, LLC was served with notice of the date and time of the hearing personally or by

registered mail, as Tennessee Code Annotated Section 29-5-306 unambiguously requires.

Parties are free to agree upon arbitration procedures different than those set forth in

Section 29-5-306. Searcy v. Harold, 2005 WL 2387159 at *3 (Tenn. Ct. App. 2005). But when

parties have not varied the requirements of the statute by written contract, the procedure of

Section 29-5-306 must be followed. Id. The arbitration clause in the contract attached as Exhibit

1 to the Complaint (which Eternity Management, LLC did not sign) does not modify the notice

procedure set forth in Section 29-5-306. Neither the arbitrator nor Plaintiff MMM, LLC


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personally served or served by registered mail notice of the date and time of the arbitration

hearing on Eternity Management, LLC. (See Complaint, Exh. 2, pgs. 2-3; Berenato Aff., ¶¶ 10-

11). Purportedly notifying a party against whom an arbitration award could be rendered of the

hearing by first-class mail and email, without proof of personal service or delivery receipt, is

insufficient to satisfy either the requirements of Tennessee Code Annotated Section 29-5-306 or

basic tenets of fundamental fairness. Plaintiff’s failure to ensure that Eternity Management, LLC

was properly served prior to the arbitration hearing prejudiced Eternity Management, LLC by

depriving it of the opportunity to respond substantively to the demand for arbitration. (See

Berenato Aff., ¶ 11). Accordingly, a Tennessee court would not confirm the purported

arbitration award against Eternity Management, LLC. See Tenn. Code Ann. § 29-5-

313(a)(1)(D); Searcy, 2005 WL 2387159 at *4.

The Complaint does not state a claim for relief against Eternity Management, Inc.

because no arbitration award was entered against Eternity Management, Inc., and the arbitration

award that was entered against Eternity Management, LLC is void and unenforceable. There is

no reasonable basis to predict that a Tennessee state court would award relief against Eternity

Management, Inc. on the allegations contained in the Complaint. Therefore, Eternity

Management, Inc. is fraudulently joined as a defendant and its citizenship should not be

considered for purposes of determining diversity of citizenship.

The proper parties to this action are completely diverse, given that Plaintiff MMM, LLC

is a citizen of Tennessee, and all of the properly joined Defendants are citizens of Oklahoma.

B. Amount in Controversy

Plaintiff seeks, among other things, confirmation of the arbitration award including

damages in the amount of $263,958.25 plus the costs and attorneys’ fees associated with the


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petition to confirm the arbitration award, plus other unspecified “damages in an amount to be

proven at trial,” plus punitive damages, plus pre- and post-judgment interest, plus treble damages

under the Tennessee Consumer Protection Act and Tennessee Code Annotated Section 47-50-

109. (See Complaint, pgs. 11, 17, 20, 22). The amount in controversy, exclusive of interest and

costs, exceeds $75,000.00.

This Court has diversity jurisdiction over this action, and this case is removable on that

basis.

CONCLUSION

For the foregoing reasons, this Court has subject matter jurisdiction over this action and

this action is properly removed to the Middle District of Tennessee, Nashville Division, pursuant

to 28 U.S.C. §§ 1332 and 1446.

This 12th day of October, 2015.

Respectfully submitted,

NEAL & HARWELL, PLC

By:_/s/ Stephen M. Montgomery _

Robert A. Peal, No. 025629

Stephen M. Montgomery, No. 026489

Marie T. Scott, No. 032771

One Nashville Place, Suite 2000

150 Fourth Avenue North

Nashville, TN 37219

Telephone: (615) 244-1713

Facsimile: (615) 726-0573

Counsel for Defendants Eternity Management, Inc,

Eternity Management, LLC, Oklahoma Men’s

Clinic – Oklahoma City, LLC, Oklahoma Men’s

Clinic – Tulsa, LLC, Kansas Men’s Clinic –

Wichita, LLC and Gregory G. Berenato


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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing has been served by First-

Class Mail, postage prepaid, on this the 12th day of October, 2015 on the following:

Lea Carol Owen

Ben H. Bodzy

Jesse Ford Harbison

Baker Donelson Bearman Caldwell & Berkowitz, P.C.

211 Commerce Street

Nashville, Tennessee 37201

_/s/ Stephen M. Montgomery _


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tom lain to confirm arbitration award and for other civil relief

~V I~ REQ~IES'~E~ I [~ CHEGIS,. IF THIS IS A ~I.~A S ~~TIUN DEM~,I~1D ~ CHECK ~'ES only if demanded iz~ ~az~nplaint:

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F ~I~" .rU~UE ~JKLT ~~.3~~3FR

T~ATE SIGNATURE OF ATTC)~N~~' OF RECt~RD

~O/12/2~~ Isl Stephen M. Mor~tgorn~r`y

F4R OFFI+C~ d~3 E ONLY

I :EC~:I~'T # ~I~7C>UNT ,~PPL~I1~1(:i 1~P .TU B. 1,~4C. J[JDGE

Case 3:15-cv-01086 Document 1-1 Filed 10/12/15 Page 1 of 1 PageID #: 12

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