Cordell v. W.W. Williams Company, Inc., The
MEMORANDUM OPINION AND ORDER DENYING 7 MOTION to Remand as set out herein. Signed by Judge Virginia Emerson Hopkins on 4/23/2014. (JLC)
2014 Apr-23 PM 03:16
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
THE W. W. WILLIAMS
) Case No.: 2:14-CV-182-VEH
MEMORANDUM OPINION AND ORDER
DENYING MOTION TO REMAND
On December 30, 2013, Dennis Cordell, filed this civil action in the Circuit
Court of Jefferson County, Alabama against the W. W. Williams Company, Inc.
(“Williams Company”), the entity which formerly employed him. (Doc. 1-1 at 5). The
only count of the complaint alleges that the defendant terminated Cordell, on account
of his age, in violation of the Alabama Age Discrimination in Employment Act
(“AADEA”), Ala. Code § 25-1-20, et seq.1 (Doc. 1-1 at 6-9). The complaint claims
no specific amount of damages.
On January 31, 2014, the defendant removed the case to this court. (Doc. 1).
The complaint refers to Ala. Code. § 25-1-20, et seq. as the “Alabama Age
Discrimination Enforcement Act.” (Doc. 1-1 at 5).
The case is now before the court on the plaintiff’s motion to remand. (Doc. 7). For the
reasons stated herein, the motion will be DENIED.
“Federal courts are courts of limited jurisdiction. They possess only that power
authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of
America,511 U.S. 375, 377 (1994). For removal to be proper, the court must have
subject-matter jurisdiction in the case. “Only state-court actions that originally could
have been filed in federal court may be removed to federal court by the Defendant.”
Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). In addition, the removal
statute must be strictly construed against removal, and any doubts should be resolved
in favor of remand. See, City of Vestavia Hills v. Gen. Fid. Ins. Co., 676 F.3d 1310,
1313 (11th Cir. 2012) (“[b]ecause removal jurisdiction raises significant federalism
concerns, federal courts are directed to construe removal statutes strictly. Indeed, all
doubts about jurisdiction should be resolved in favor of remand to state court.”)
“In removal cases, the burden is on the party who sought removal to
demonstrate that federal jurisdiction exists.” Friedman v. New York Life Ins. Co., 410
F.3d 1350, 1353 (11th Cir. 2005) (citation omitted);Williams v. Best Buy Co., 269
F.3d 1316, 1319 (11th Cir. 2001).
That burden goes not only to the issue of federal jurisdiction, but also to
questions of compliance with statutes governing the exercise of the right
of removal. Albonetti v. GAF Corporation-Chemical Group, 520 F.
Supp. 825, 827 (S.D. Texas 1981); Jennings Clothiers of Ft. Dodge, Inc.
v. U.S. Fidelity & Guaranty Co., 496 F. Supp. 1254, 1255 (D. Iowa
1980); Fort v. Ralston Purina Company, 452 F. Supp. 241, 242 (E.D.
Parker v. Brown, 570 F. Supp. 640, 642 (D.C. Ohio, 1983).
The defendant claims that this court has subject matter jurisdiction over this
matter pursuant to 28 U.S.C. § 1332 which provides, in pertinent part, that “[t]he
district courts shall have original jurisdiction of all civil actions where the matter in
controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and
is between . . . citizens of different States.” The parties agree that this case is between
citizens of different states,2 but they disagree over whether the amount in controversy
has been satisfied.
Standard for Proving the Amount of Damages
If, as in this case, a plaintiff makes “an unspecified demand for damages in
state court, a removing defendant must prove by a preponderance of the evidence that
The defendant, which is a Delaware Corporation with its principal place of business in
Ohio (doc. 1 at 2; doc. 1-1 at 5), is a citizen of both Ohio and Delaware. 28 U.S.C. § 1332(c)(1)
(“[A] corporation shall be deemed to be a citizen of every State and foreign state by which it has
been incorporated and of the State or foreign state where it has its principal place of business.”).
The plaintiff is a citizen of Alabama. (Doc. 1-1 at 5; doc. 1 at 2).
the amount in controversy more likely than not exceeds the . . . jurisdictional
requirement.” Tapscott v. MS Dealer Service Corp., 77 F.3d 1353, 1357 (11th Cir.
1996), abrogated on other grounds by Cohen v. Office Depot, Inc., 204 F.3d 1069
(11th Cir. 2000). The Eleventh Circuit has stated:
We reiterate that the burden of proving jurisdiction lies with the
removing defendant. A conclusory allegation in the notice of removal
that the jurisdictional amount is satisfied, without setting forth the
underlying facts supporting such an assertion, is insufficient to meet the
defendant's burden. See Laughlin v. Kmart Corp., 50 F.3d 871, 873
(10th Cir.1995); Allen, 63 F.3d at 1335; Gaus v. Miles, 980 F.2d 564,
567 (9th Cir.1992); see also Burns v. Windsor Ins. Co., 31 F.3d 1092,
1097 (11th Cir.1994) (concluding that removing defendant did not meet
burden of proving amount in controversy where it offered “nothing more
than conclusory allegations”); Gaitor v. Peninsular & Occidental S.S.
Co., 287 F.2d 252, 255 (5th Cir.1961) (stating that removing defendant
must make “affirmative showing ... of all the requisite factors of
Williams v. Best Buy Co., Inc., 269 F.3d 1316, 1319-20 (11th Cir. 2001).
The Amount of Back Pay Alone Exceeds the Jurisdictional
Minimum of this Court
The plaintiff asks the court to award back pay and other relief.3 (Doc. 1-1 at 8).
Specifically, the complaint asks the court to:
Issue a declaratory judgment that the employment policies, practices,
procedures, conditions and customs of the [d]efendant, its agents,
servants[,] and employees are violative of the rights of the [p]laintiff as
secured by the [AADEA].
Grant the [p]laintiff a permanent injunction, enjoining the [d]efendant, its
employees, servants, agents[,] and successors and those acting in concert
The plaintiff states that at the time of removal he had been unemployed for
approximately 26 weeks, and that, while employed by the defendant, his gross
average weekly wage was $1,262.49. (Doc. 7 at 5). He then admits that his “lost
wages at the time of removal was $32,824.74.” (Doc. 7 at 6) (emphasis added).
However, the defendant urges the court to continue the computation of lost
back wages up until the potential future trial date.4 (Doc. 1 at 2-3). At the earliest, the
trial of this matter would be on or about January 13, 2015.5 From the date of removal
with it and at [its] request from continuing to violate the above cited laws.
Award the [p]laintiff an appropriate amount of lost back pay,
compensation, benefits, front pay, liquidated damages, compensatory and
punitive damages, costs, expenses of prosecuting this action and attorney’s
Return the [p]laintiff to employment with the [d]efendant in the same or
similar position as he occupied with the [d]efendant at the time of his
termination, with the same compensation and benefits, or to those he
would have been otherwise entitled but for his unlawful termination. In the
alternative, award the [p]laintiff an appropriate amount of front pay.
(Doc. 1-1 at 8).
If the case did in fact go to trial, back pay through the date of trial would be the proper
measure of the plaintiff’s damages. Munoz v. Oceanside Resorts, Inc., 223 F.3d 1340, 1347 (11th
Cir. 2000) (“[I]n an age discrimination suit, a successful plaintiff receives back pay from the date
of his or her termination to the date of trial.”); Kok v. Kadant Black Clawson, Inc., 274 F. App'x
856, 857 (11th Cir. 2008) (same standard under Alabama Act).
On March 10, 2014, based upon the parties’ representations in their Rule 26 Report of
Parties Planning Meeting, this court entered a scheduling order which sets September 15, 2014,
as the dispositive motion deadline. (Doc. 9 at 5). That order also provides:
This case will be set for a final pretrial conference . . . if no motion for summary
judgment is filed, approximately 60 days after the dispositive motions deadline. . .
to the estimated trial date is about 50 weeks. Therefore, through the estimated trial
date, $63,124.50 of additional back wages6 would be added to the amount computed
up to the time of removal ($32,824.74), for $95,949.24 in total back wages. That
figure easily satisfies the amount in controversy requirement of 28 U.S.C. § 1332.
The plaintiff insists that the standard for removal requires the court to
determine back pay due only at the time of removal, and implies that to compute it
based upon a possible future trial date would amount to the type speculation
prohibited by the Eleventh Circuit in Lowery v. Alabama Power Co., 483 F.3d 1184
(11th Cir. 2007).7
. The case should be ready for trial approximately 60 days after the pretrial
(Doc. 9 at 3). Using these time periods, if no motion for summary judgment is filed, the pretrial
conference would be set on or about November 14, 2014. Thereafter, the case would be tried on
or about January 13, 2015. Of course, if a motion for summary judgment is filed, the trial date
would be later.
This figure is computed by multiplying the plaintiff’s gross average weekly wage of
$1,262.49 by 50 weeks.
Actually the plaintiff, in a footnote, writes:
In addition to the opinion in Snellgrove, this court has rendered several
remand decisions based on Lowery v. Alabama Power Co., 483 F.3d 1184, (11th Cir.
2007). See Wood v. Option One Mortgage Corp., 580 F.Supp.1248 (N.D. Ala. 2008);
Smith v. Parker, No. 4:08-CV-901-VEH, 2008 U.S. Dist. LEXIS 87220 (Docs. 10,
11) (N.D. Ala. July 11, 2008); Wright v. Allstate Ins. Co., No. 1:08-CV-449-VEH,
2008 U.S. Dist. LEXIS 87067 (Docs. 6, 7) (N.D. Ala. Apr. 23, 2008); Stanfields v.
Fleet Global Services, No. 2:07-CV-2307-VEH, 2008 U.S. Dist. LEXIS 87227
(Docs. 10, 11) (N.D. Ala. Mar. 11, 2008).
Courts in the Eleventh Circuit Can Use Reasonable Deductions,
Reasonable Inferences, or Other Reasonable Extrapolations To
Determine the Amount in Controversy
The Eleventh Circuit’s decision in Pretka v. Kolter City Plaza II, Inc., 608 F.3d
744 (11th Cir. 2010), provides the appropriate framework for this case. However, its
discussion of Lowery is instructive. In Pretka, the court summarized the facts and
holding in Lowery as follows:
We concluded in Lowery that it would be “impermissible
speculation” for a court to hazard a guess on the jurisdictional amount
in controversy “without the benefit of any evidence [on] the value of
individual claims.” 483 F.3d at 1220; see also id. at 1214–15 (“If [the
defendant's] evidence is insufficient to establish that removal was proper
or that jurisdiction was present, neither the defendants nor the court may
speculate in an attempt to make up for the notice's failings. The absence
of factual allegations pertinent to the existence of jurisdiction is
dispositive and, in such absence, the existence of jurisdiction should not
be divined by looking to the stars.” (footnote and citation omitted));
Miedema, 450 F.3d at 1332. Because the proper interpretation of
Lowery's “impermissible speculation” rule is important, we will explain
it in greater detail.
In Lowery the defendant, Alabama Power, had attached to its
notice of removal copies of the initial complaint and the third amended
complaint, but nothing else. 483 F.3d at 1189 & n. 8. Those pleadings
offered no specific facts on the amount in controversy. See id. at 1219
(“[The third amended] complaint contains neither an ad damnum clause
indicating the amount of damages sought, nor any other concrete
(Doc. 7 at 4, n. 1).The plaintiff discusses none of these cases, and none of them dealt with the issue
in the instant case. Then, he argues that “rather than determining the amount in controversy at the
time of removal, the [d]efendant calculated the amount in controversy based on a totally conjectured
trial date a year into the future.” (Doc. 7 at 4).
information about the value of plaintiffs’ claims.” (emphasis added));
see also Lowery v. Honeywell Int'l, Inc., 460 F.Supp.2d 1288, 1291
(N.D.Ala. 2006) (“There is nothing in the original complaint to
distinguish between a plaintiff who may be claiming severe lung disease
from one who may be claiming grit in her grits.”).
The notice of removal in Lowery contained a conclusory
allegation that CAFA's amount-in-controversy requirement had been
satisfied, but that was not enough. See Williams, 269 F.3d at 1320 (“A
conclusory allegation in the notice of removal that the jurisdictional
amount is satisfied, without setting forth the underlying facts supporting
such an assertion, is insufficient to meet the defendant's burden.”).
Recognizing the shortcomings of Alabama Power's notice of
removal, the Lowery plaintiffs filed a motion to remand. In response,
Alabama Power filed a supplement to its notice of removal, pointing out
that to reach CAFA's $5 million jurisdictional threshold, each of the 400
plaintiffs' claims would need to put in controversy only $12,500. The
supplement argued it was evident more than $5 million was in
controversy because plaintiffs in recent mass tort cases in Alabama had
received jury verdicts or settlements exceeding that amount. Lowery,
483 F.3d at 1189. But the supplement failed to explain the facts of those
other tort cases or link them to the facts of the Lowery case. See id. at
1221 (“Looking only to this evidence and the complaint, the facts
regarding other cases tell us nothing about the value of the claims in this
lawsuit. Even were we to look to evidence beyond that contained within
the notice of removal, in the present dispute—with a record bereft of
detail—we cannot possibly ascertain how similar the current action is to
those the defendants cite.”); Lowery, 460 F.Supp.2d at 1299
(“Defendants' hopeful conjecture based on Alabama jury verdicts in
cases that may have some similarity to this case, but are not closely
similar, do[es] not suffice ....”).
We concluded in Lowery that Alabama Power's supplement and
its additional “ ‘evidence’ ”—note the scare quotes—about other mass
tort cases told us “nothing about the value of the claims” because the
record was “bereft of detail” about whether the plaintiffs' complaint was
similar to those other cases. Lowery, 483 F.3d at 1220–21; see also id.
(“Absent specific detail about the present action, the supplement in no
way clarifies the aggregate value of the claims here.”). The record in
Lowery contained only “naked pleadings”—no specific factual details,
no discovery, no affidavits or declarations, no testimony, no
interrogatories, and no exhibits other than the complaints. We took pains
to emphasize that fact. Over and over. See id. at 1189 n. 8 (“[A]labama
Power cited nothing from such discovery in support of its notice of
removal or in its subsequent argument to the district court ....”); id. at
1209 (“naked pleadings”); id. at 1210 (“bare pleadings”); id. (“a removal
case—like this one—where there is no evidence to review”); id.
(distinguishing Lowery from a case in which counsel admitted certain
jurisdictional facts during oral argument and another case in which the
defendant's employee testified during a pretrial hearing); id. (“naked
pleading context”); id. (“only the bare pleadings are available”); id. at
1210–11 (“We have no evidence before us by which to make any
informed assessment of the amount in controversy.”); id. at 1213 n. 63
(“bare pleadings”); id. at 1217 (“[A]labama Power ... has asserted no
factual basis to support federal jurisdiction ....”); id. at 1220
(emphasizing that we were “without the benefit of any evidence
[regarding] the value of individual claims”).
We stated in Lowery that “[t]he absence of factual allegations
pertinent to the existence of jurisdiction is dispositive and, in such
absence, the existence of jurisdiction should not be divined by looking
to the stars.” Id. at 1215 (emphasis added). On that basis we concluded
that the Lowery defendants had failed to establish federal jurisdiction by
a preponderance of the evidence. See id. at 1220–21.
Pretka, 608 F.3d at 752-53. The court then stated:
Lowery did not say, much less purport to hold, that the use of deduction,
inference, or other extrapolation of the amount in controversy is
impermissible, as some district courts have thought. That was not the
question in Lowery. Instead, the question was how to apply the
preponderance of the evidence standard in the “fact-free context” of that
particular case. Id. at 1209. The answer we gave is that without facts or
specific allegations, the amount in controversy could be “divined [only]
by looking at the stars”—only through speculation—and*754 that is
impermissible. See id. at 1209, 1215.
A different question is presented, however, when a removing
defendant makes specific factual allegations establishing jurisdiction
and can support them (if challenged by the plaintiff or the court) with
evidence combined with reasonable deductions, reasonable inferences,
or other reasonable extrapolations. That kind of reasoning is not akin to
conjecture, speculation, or star gazing. See Northup Props., Inc. v.
Chesapeake Appalachia, L.L.C., 567 F.3d 767, 770–71 (6th Cir.2009)
(concluding that the defendant's affidavits were specific enough to
prevent the determination of the amount in controversy “from becoming
a matter of judicial star-gazing”); Siewe v. Gonzales, 480 F.3d 160, 168
(2d Cir.2007) (“An inference is not a suspicion or a guess. It is a
reasoned, logical decision to conclude that a disputed fact exists on the
basis of another fact that is known to exist.” (quotation and other marks
omitted)); cf. Maiz v. Virani, 253 F.3d 641, 664 (11th Cir.2001)
(“Suffice it to say that while damages may not be determined by mere
speculation or guess, it will be enough if the evidence shows the extent
of the damages as a matter of just and reasonable inference.” (quotation
and other marks omitted)).
Pretka, 608 F.3d at 753-54. The defendant states that computing back pay damages
through the trial date is exactly the type of reasonable deduction, inferences, or other
extrapolation which is allowed after Pretka. The court agrees.
There Is Persuasive Authority from the Eleventh Circuit Court
of Appeals Supporting the Method of Calculation Proposed by
The defendant cites Kok v. Kadant Black Clawson, Inc., 274 F. App'x 856 (11th
Cir. 2008), for the proposition that “[o]n the specific question of lost wages, the
Eleventh Circuit has approved a court’s reasonable calculation of back pay damages
through a future trial date.” (Doc. 10 at 4). Like this case, Kok was an AADEA case
where, in order to establish that the amount in controversy was satisfied, the
defendant “calculated [the plaintiff’s] recovery for back pay from the date of his
termination to trial to equal $94,963.” Kok, 274 Fed. Appx. at 857. The Eleventh
Circuit noted that the defendant supported this calculation with evidence which
established the dollar value of the plaintiff’s gross pay and benefits through the first
eleven months of the year. Id.8 The Eleventh Circuit then noted that “[t]he district
court correctly concluded that [the defendant] established that, at the time of removal,
[the plaintiff’s] complaint for damages exceeded the amount in controversy required
for diversity jurisdiction.” Id.
The plaintiff argues
While the Kok opinion did state that the defendant opposed “[the
plaintiff’s motion [to remand] and calculated [the plaintiff’s] recovery
for back pay from the date of his termination to trial”, [sic] this
statement is nothing more than a recitation of the defendant’s argument
in opposition to the motion to remand and is in no way binding authority
for such a proposition.
(Doc. 11 at 3). The court does not agree. In reaching its holding, the Eleventh Circuit
This part of the Kok opinion is confusing since, on the one hand, it states that the
defendant calculated damages “to trial” and then, one sentence later, sets out the value of the
plaintiff’s damages “for the first 11 months of the year.” Kok, 274 Fed. Appx at 857.
explained that the damages in Kok were computed through a future trial date and set
out the evidence which supported the computation. Further, it cited Munoz v.
Oceanside Resorts, Inc., 223 F.3d 1340, 1347 (11th Cir. 2000), a case which holds
that back pay should be computed through the date of trial. In order to accept the
plaintiff’s argument, this court would have to assume that the opinion included all of
that information for no reason, and the Eleventh Circuit determined, based on some
unstated evidence and reasoning, that the amount in controversy was satisfied. The
undersigned declines to make such an assumption. Accordingly, the court finds Kok
to be persuasive authority9 for the proposition that back pay, computed up to an
anticipated trial date, is an appropriate measure of the amount in controversy for
purposes of determining whether subject matter jurisdiction exists.10
Post-Pretka Authority Supports the Approach Advocated by the
No Eleventh Circuit opinion has cited Kok. However, all district court cases
decided after Pretka that the undersigned is aware of have held that, in a removal
“Unpublished opinions are not considered binding precedent, but they may be cited as
persuasive authority.” 11th Cir. R. 36-2.
The plaintiff argues that this court should look to the facts before Judge Hancock, the
district judge in Kok. He contends that doing so would show that “at the time the notice of
removal was filed, the actual amount in controversy had already exceeded the $75,000.00
threshold.” (Doc. 11 at 3-4). He contends that those facts explain why the Eleventh Circuit
reached the decision it did. The court will not look outside the opinion to try to read the mind of
the Eleventh Circuit panel which decided Kok.
context, back pay should be computed up to an anticipated date of trial for purposes
of determining whether or not the amount in controversy requirement has been met.
The court is aware of two pre-Pretka district court decisions holding to the
contrary. However, those cases are not persuasive, as they rely on Lowery as that case
was understood prior to Pretka. In the first of these cases, Snead v. AAR Mfg., Inc.,
809-CV-1733-T-30EAJ, 2009 WL 3242013 (M.D. Fla. Oct. 6, 2009) (Moody, J.),
Judge Moody cited Lowery’s statement that “[t]he defendant and the court may not
speculate about the amount in controversy, nor should the district court's jurisdiction
be “divined by looking to the stars.” Snead, 2009 WL 3242013 at *2 (citing Lowery
at 1215). He then found that the amount in controversy “cannot be satisfied by
speculation as to the amount of damages through the date of trial,” writing “[t]he
cases [d]efendant relies upon to support its argument that the damages can be
calculated through the date of trial were decided prior to Lowery, which drastically
changed the analysis of removal.” Id. at *3. Then, in a footnote, Judge Moody found
Kok to be unpersuasive, noting that it did not cite to Lowery, “and the issue on review
[in Kok] was decided by the district court prior to Lowery.” Id. at *3 n. 2. Similarly,
in Brown v. Am. Exp. Co., Inc., 09-61758-CIV, 2010 WL 527756 (S.D. Fla. Feb. 10,
2010) (Seltzer, M.J.)., citing and discussing Snead, the court wrote “[t]he Kok
decision . . . is unpublished and, as such, is not binding on this Court.”Brown, 2010
WL 527756 at *4.
Interestingly, Judge Moody, the author of the Snead decision, which was
quoted by Brown, has, post-Pretka, computed back pay through an “estimated” trial
date, for the purpose of determining that the amount in controversy exceeds the
jurisdictional minimum. In Cashman v. Host Int'l, Inc., 8:10-CV-1197-T-30MAP,
2010 WL 4659399 (M.D. Fla. Nov. 9, 2010), Judge Moody addressed the plaintiff’s
argument that doing so “would be engaging in impermissible speculation prohibited
under Lowery.” Cashman, 2010 WL 4659399 at * 2. He wrote:
[I]n Pretka, the Eleventh Circuit clarified that Lowery was a “fact-free”
case, in which there was no “concrete information” regarding the value
of the claims. Pretka, 608 F.3d at 752 (quoting Lowery, 483 F.3d at
1219). “But Lowery did not say, much less purport to hold, that the use
of deduction, inference, or other extrapolation of the amount in
controversy is impermissible.” Id. at 753.
Here, [the defendant] has provided uncontroverted concrete
information which supports its calculation of the amount in controversy
at the time of removal. Consideration of the additional back pay amount
from the date of removal to the date of trial, based on a conservative
estimate of the trial date, is not impermissible speculation. It is, instead,
extrapolation of the submitted evidence, which is permitted under
Id.; see also, Sheehan v. Westcare Found., Inc., 8:12-CV-2544-T-33TBM, 2013 WL
247143 at *3 (M.D. Fla. Jan. 23, 2013) (Hernandez Covington, J.) (“The Court agrees
with the reasoning in Cashman and, accordingly, rejects [the] argument that the
amount of back pay damages in this case are impermissibly speculative.”).
Similarly, in Morgan v. Sears, Roebuck, & Co., 12-60055-CIV, 2012 WL
2523692 * 2 (S.D. Fla. June 29, 2012), the court considered back pay up to the date
of trial, writing:
In opposing the use of this trial date, Plaintiffs point to cases that
rely upon Lowery v. Alabama Power Co., 483 F.3d 1184 (11th
Cir.2007). (Mot. at 5–6.) However, in Pretka, the Court stated that
“Lowery did not say, much less purport to hold, that the use of
deduction, inference, or other extrapolation of the amount in controversy
is impermissible” for purposes of establishing the amount in
controversy. Pretka, 608 F.3d at 753; see also Roe, 613 F.3d at 1062
(“courts may use their judicial experience and common sense in
determining whether the case stated in a complaint meets federal
See, also, Chase v. Ace Hardware Corp., CIV.A. 13-0077-KD-M, 2013 WL 1788496
at *2 (S.D. Ala. Apr. 10, 2013) (Milling M.J.) report and recommendation adopted,
CIV.A. 13-00077-KD, 2013 WL 1788023 (S.D. Ala. Apr. 26, 2013) (rejecting Snead
and following recent cases in finding that “calculating back pay from the date a
claimant was terminated until the date of trial to be a more accurate reflection of those
damages than calculating them, as Plaintiff had suggested, to the date of removal.”);
Leslie v. Conseco Life Ins. Co., 11-81035-CIV-MARRA, 2012 WL 4049965 (S.D.
Fla. Sept. 13, 2012) (Marra, J.) (citing Cashman); Penalver v. N. Elec., Inc., 1280188-CIV, 2012 WL 1317621 at *2 (S.D. Fla. Apr. 17, 2012) (Cohn, J.) (“[B]ack
pay should be calculated from the date of the adverse employment action until the
date of trial.”); Morris v. Plant Performance Servs., LLC, 5:11-CV-350/RS-EMT,
2011 WL 6203497 at *1 (N.D. Fla. Dec. 13, 2011) (Smoak, J.) (same) (citing Fusca
v. Victoria’s Secret Stores, LLC, 2011 U.S. Dist LEXIS 98194 (M.D. Fla. 2011)).
In sum, all Eleventh Circuit district court decisions that the undersigned is
aware of and that have considered this issue post-Pretka have determined that back
pay should be computed through an estimated trial date in order to determine whether
the requisite amount in controversy has been shown for purposes of subject matter
jurisdiction. This court is persuaded by that fact, the rationale of the post-Pretka
district court opinions cited above, and the Eleventh Circuit’s opinion in Kok.
For the foregoing reasons, the court determines that the amount in controversy
requirement has been met. The motion to remand is DENIED.
DONE and ORDERED this 23rd day of April, 2014.
VIRGINIA EMERSON HOPKINS
United States District Judge
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