IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Christian Borda,

Plaintiff,

v. Case No. 2:18-cv-990

Dennis Hartley, et al.,

Defendants.

OPINION AND ORDER

This is 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.

Plaintiff 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 amount.

On 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 amount.1

“To 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

1Plaintiff 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.

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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).

For 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

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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.

Plaintiff 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.2

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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 complaint

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Plaintiff 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 F.

App’x 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 instant action.

Based on the allegations in the complaint, the most that

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 requirements for punitive damages] with

respect to his common law ... claims”). 

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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.

Date: June 7, 2019 s/James L. Graham 

 James L. Graham

 United States District Judge 

 

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