Moreland v. SunTrust Bank

Filing 21

OPINION AND ORDER granting 15 Motion to Remand to State Court. The case is remanded to the Lee County Circuit Court. The Clerk shall transmit a certified copy of this Opinion and Order to that court, terminate all motions and deadlines, and close the case. Signed by Judge John E. Steele on 7/15/2013. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JENNIFER MORELAND,
Plaintiff,
vs.

Case No.

SUNTRUST
BANK,
corporation,

a

2:13-cv-242-FtM-29UAM

foreign

Defendant.
___________________________________
OPINION AND ORDER
This matter comes before the Court on plaintiff’s Motion for
Remand (Doc. #15) filed on April 29, 2013.

Defendant filed a

Response (Doc. #17) on May 13, 2013. For the reasons set forth
below, the motion is granted.
Plaintiff filed a one count Complaint in state court asserting
a claim under the Florida Whistleblowers Act, Fla. Stat. § 448.102.
(Doc.

#2.)

The

timely

Notice

of

Removal

(Doc.

#1)

asserts

diversity jurisdiction pursuant to 28 U.S.C. § 1332 as the basis
for removal.
Title 28, United States Code, Section 1332(a) requires that
the parties be citizens of different states and that the matter in
controversy exceed the sum or value of $75,000, exclusive of
interest and costs.
1255,

1261

(11th

Morrison v. Allstate Indem. Co., 228 F.3d

Cir.

2000).

As

the

party

seeking

federal

jurisdiction, the burden is upon defendant to establish diversity
jurisdiction as of the date of removal. Pretka v. Kolter City Plaza

II, Inc. 608 F.3d 744, 751 (11th Cir. 2010); Sammie Bonner Constr.
Co. v. W. Star Trucks Sales, Inc., 330 F.3d 1308, 1310 (11th Cir.
2003).

The

parties

agree

there

is

complete

diversity

of

citizenship, but dispute whether the amount in controversy exceeded
$75,000 at the time of removal.
The Court typically looks to the complaint to establish the
amount in controversy. McGee v. Sentinel Offender Serv’s, LLC, No.
11-14077, 2013 WL 2436658, at *4 (11th Cir. June 6, 2013).

Where

the complaint does not assert a specific amount of damages, “the
removing defendant must prove by a preponderance of the evidence
that

the

amount

requirement.”

in

controversy

exceeds

the

jurisdictional

McGee, 11-14077, 2013 WL 2436658 at *4 (quoting

Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir. 2001)).
To determine if the removing defendant has done so, the court looks
to

the

Notice

Additionally,

of

Removal.

“[a]

removing

Williams,
defendant

269

may

F.3d

rely

on

at

1319.

its

own

affidavits, declarations, or other documentation to establish the
amount in controversy.”

McGee, 11-14077, 2013 WL 2436658 at *4

(citing Pretka, 608 F.3d 744 at 755).
In

this

case,

the

Complaint

seeks damages in

excess

of

$15,000, the state circuit court jurisdictional amount, “including
without limitation, financial loss, damage to reputation, and
mental suffering and anguish.”

(Doc. #2, ¶14.)

Plaintiff also

seeks reinstatement with full fringe benefits and seniority rights;

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past and future lost wages, benefits, and other remuneration; and
attorneys fees and costs.

(Doc. #2, “Wherefore” clause.)

No

specific amount of damages is alleged, and the Complaint provides
no

financial

calculation
Complaint

information

of

are

damages.

upon

which

Therefore,

insufficient

to

to
the

establish

make

a

reasonable

allegations
that

the

of

amount

the
in

controversy exceeds $75,000.
The Notice of Removal (Doc. #1) states that plaintiff’s
annual salary was $70,642.62 when she was terminated in October,
2012; that she was eligible for and had received monthly and
quarterly

incentives,

which

in

May

and

August

2012

equaled

$4,911.66; that defendant had contributed $2,467.42 to plaintiff’s
401(k)

account;

and

that

defendant

plaintiff’s dental insurance.

paid

$26.00

monthly

for

The Notice of Removal asserts that

back pay should be calculated to the date of the trial and,
assuming trial within one year of the filing of the complaint,
estimates back pay to exceed $100,077.04.

The Notice of Removal

also argues that plaintiff’s mitigation efforts should not be
considered at the jurisdictional phase because mitigation is a
defense which must be pled and proven by defendant.
Plaintiff argues that the Notice of Removal fails to show by
a preponderance of evidence that the amount in controversy is in
excess of $75,000 for several reasons.

Plaintiff agrees that her

annual salary at the time of termination was $70,642.62 ($193.54

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per calendar day).

Plaintiff also asserts, without contradiction,

that on January 15, 2013, she obtained other employment at an
annual salary of $53,000 ($145.21 per calendar day). (Doc. #15, ¶¶
4, 6, 8.)

The 101 days plaintiff was unemployed after termination

translates into damages of $19,547.54 ($193.54 X 101 days of
unemployment).
There were 73 days between the January 15, 2013 new job and
the March 28, 2013 filing of the Notice of Removal.

There was a

pay differential of $48.33 per calendar day between plaintiff’s
former employment and her current employment.

This results in

additional damages of $3,528.09 through March 28, 2013 (73 X
$48.33).

The

Court

rejects

defendant’s

argument

that

the

unmitigated damage amount should be utilized for this time period.
An injured employee has a “duty to mitigate damages by being
reasonably

diligent

employment.”

in

seeking

substantially

equivalent

EEOC v. Massey Yardley Chrysler Plymouth, Inc., 117

F.3d 1244, 1251 (11th Cir. 1997).

While the failure to mitigate

damages is an affirmative defense, the proper measure of damages is
the mitigated

differential.

The

Court agrees with

Fusco v.

Victoria’s Secret Stores, LLC, 806 F. Supp. 2d 1240, 1243-44 (M.D.
Fla. 2011)
includes

a

that

the

reduction

correct
for

calculation of

the

employment.

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income

from

back

pay

damages

plaintiff’s

new

In

wrongful

termination

suits,

“a

successful

plaintiff

receives back pay from the date of his or her termination to the
date of trial.”

Munoz v. Oceanside Resorts, Inc., 223 F.3d 1340,

1347 (11th Cir. 2000).

Using the projected trial date, May 15,

2014, plaintiff’s additional back pay damages from March 29, 2012
to

trial

are

$19,960.29

($48.33

per

calendar

X

413

days).

Plaintiff agrees to including the $3,750.00 contribution to the
401)k) account (Doc. #15, p. 4, n.3).

The dental insurance

payments would equal $468.00 through the trial date.
finds that
speculative.

incentive

pay

cannot

be

considered

The Court

because

it

is

A preponderance of the evidence fails to show that

plaintiff would receive incentive pay in the future simply because
she received it in the past; further there is no reasonable basis
to determine what the amount would be.1

The total amount in

controversy which is properly set forth in the Notice of Removal
therefore totals $47,253.92.
A removing defendant may also rely upon additional evidence
demonstrating that removal was proper.

Roe v. Michelin N. Am.,

Inc., 613 F.3d 1058, 1061 (11th Cir. 2010). A successful plaintiff
is entitled to future lost wages.

The Notice of Removal does not

discuss future lost wages, but defendant suggests that such an
award is commonly for two years, citing a single case.

1

(Doc. #17,

Even if the Court included the $11,050 incentive pay as
requested by defendant (Doc. #17, p. 6), the jurisdictional amount
would not be satisfied.
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pp. 2, 7.)

The Court is not aware of any such two year convention,

and defendant has not met its burden of establishing a nonspeculative amount of future lost wages.
A successful plaintiff may also be awarded attorney fees. The
general rule is that attorneys' fees count towards the amount in
controversy only if they are allowed for by statute or contract.
See

Graham

v.

Henegar,

640

F.2d

732,

736

(5th

Cir.

1981).

Defendant has not presented any evidence as to the amount of a
reasonable attorney fee in this case, and thus there is no amount
which may be considered.
Defendant has not established that the amount in controversy
in this case is in excess of $75,000.

Therefore, the motion to

remand will be granted.
Accordingly, it is now
ORDERED:
1.

Plaintiff’s Motion for Remand (Doc. #15) is GRANTED.

2.

The case is remanded to the Circuit Court of the Twentieth

Judicial Circuit, in and for Lee County, Florida, and the Clerk of
the Court shall transmit a certified copy of this Opinion and Order
to the Clerk of that court.
3.

The Clerk is directed to terminate all other pending

motions and deadlines as moot, and close the case.
DONE AND ORDERED at Fort Myers, Florida, this
July, 2013.

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15th

day of

Copies: Counsel of record

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