Case Information
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION
RHONDA SCHIMMENTI,
Plaintiff, v. Case No. 8:13-cv-2862-T-30TBM ARDEN COURTS OF TAMPA FL, LLC,
Defendant.
_____________________________________/
ORDER
THIS CAUSE comes before the Court upon Plaintiff’s Motion to Remand (Dkt. 7) and Defendant’s Response in Opposition (Dkt. 8). The Court, having reviewed the motion, response, and being otherwise advised in the premises, concludes that the motion should be granted.
BACKGROUND
On October 15, 2013, Plaintiff filed the instant action in state court, alleging employment claims arising under Florida law. Plaintiff seeks compensatory damages, including back pay, front pay, damages related to Plaintiff’s alleged emotional distress, punitive damages, and attorney’s fees. Plaintiff does not attribute an amount to any of her damages, or allege any facts that would aid the Court in approximating Plaintiff’s damages, other than to allege that her damages exceed $15,000.
On November 12, 2013, Defendant removed the state court action to this Court based on diversity jurisdiction. Defendant surmises that Plaintiff’s damages exceed the jurisdictional amount; however, Defendant does not point to any evidence establishing the amount.
Plaintiff seeks to remand this action. Plaintiff does not contest that the parties are diverse. Plaintiff argues that Defendant has not demonstrated that Plaintiff’s damages exceed $75,000.
As discussed below, the Court agrees that Defendant did not establish by a preponderance of the evidence that the amount in controversy more likely than not exceeds $75,000.
DISCUSSION
Where the alleged basis for federal jurisdiction is diversity under 28 U.S.C. § 1332,
as it is in this case, the removing defendant has the burden of demonstrating that there is (1)
complete diversity of citizenship and (2) an amount in controversy greater than $75,000.
See
28 U.S.C. § 1332(a). The parties do not dispute whether complete diversity of citizenship
exists. When, as here, damages are not specified in the state court complaint, the defendant
seeking removal must prove by a preponderance of the evidence that “the amount in
controversy more likely than not exceeds ... the jurisdictional requirement.”
Roe v. Michelin
N. Am., Inc.,
In determining the amount in controversy, the court should look first to the complaint.
Id.
If the amount is unavailable from the complaint alone, as it is in this case, the court can
look to the notice of removal and other “evidence relevant to the amount in controversy at
the time the case was removed,” including evidence submitted in response to a motion to
remand.
Id.
In
Pretka,
the Eleventh Circuit held that a party seeking to remove a case to
federal court within the first thirty days after service is not restricted in the types of evidence
it may use to satisfy the jurisdictional requirements for removal.
Id.
at 770-71. This
evidence may include the removing defendant’s own affidavit, declaration, or other
documentation.
Id.
at 755. Moreover, district courts are permitted to make “reasonable
deductions” and “reasonable inferences,” and need not “suspend reality or shelve common
sense in determining whether the face of a complaint ... establishes the jurisdictional
amount.”
Id.
at 770. “Instead, courts may use their judicial experience and common sense
in determining whether the case stated in a complaint meets federal jurisdictional
requirements.”
Roe,
Applying the guidelines set forth in Roe and Pretka , the Court concludes that Defendant has not met its burden in establishing by a preponderance of the evidence that the amount in controversy more likely than not exceeds $75,000. Defendant simply does not provide any evidence to meet its burden. Indeed, Defendant assumes the amount in controversy is met based on Plaintiff’s unspecified demand for damages. Defendant does not provide an affidavit, or any other documentation, that sheds any light on Plaintiff’s damages. This is perplexing, especially because Defendant, as Plaintiff’s former employer, should have some information related to Plaintiff’s wages, which form a large part of Plaintiff’s compensatory damages.
Defendant also argues that Plaintiff’s failure to stipulate to the amount in controversy
is evidence that the damages exceed $75,000. But the Eleventh Circuit has held that a
plaintiff’s failure to stipulate to the amount in controversy is insufficient on its own to satisfy
a defendant’s burden of proof.
See Williams v. Best Buy Co., Inc.
,
In sum, even applying common sense, the Court cannot conclude, based on the allegations of the complaint, what a jury may award, if anything, for Plaintiff’s alleged damages. [2]
It is therefore ORDERED AND ADJUDGED that:
1. Plaintiff’s Motion to Remand (Dkt. 7) is granted. 2. The Clerk of Court is directed to remand this case to the Circuit Court of the Thirteenth Judicial Circuit, in and for Hillsborough County, Florida, and provide that court with a copy of this Order.
3. The Clerk of Court is directed to close this case and terminate any pending motions as moot.
DONE and ORDERED in Tampa, Florida on December 30, 2013.
Copies furnished to:
Counsel/Parties of Record
S:\Even\2013\13-cv-2862.grantremand.frm
Notes
[1] Notably, the parties rely in their papers on outdated case law that does not apply to a removal filed within thirty days of service.
[2] Notably, this Order does not prevent Defendant from taking discovery on Plaintiff’s damages and removing the case upon an “other paper” under subsection b(3) of 28 U.S.C. § 1446 (assuming Defendant complies with the deadlines set forth in subsections b(3) and c).