Intihar v. Citizens Information Associates, LLC
ORDER denying 9 Motion to Remand to State Court and for Attorney Fees. Plaintiff shall file a response to the 6 Motion to Dismiss within 10 days and the parties shall hold their scheduling conference within the same time period. Signed by Judge John E. Steele on 1/8/2014. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
Case No: 2:13-cv-720-FtM-29UAM
This matter comes before the Court on plaintiff's Motion for
Remand and Motion for Award of Attorneys' Fees (Doc. #9) filed on
October 22, 2013.
Defendant filed a Response and Memorandum of
Law in Opposition (Doc. #14) on October 24, 2013.
a remand based on defendant’s failure to establish the requisite
amount in controversy at the time of removal.
On the face of the Complaint (Doc. #2), plaintiff seeks the
state jurisdictional amount of $15,000.00, and does not otherwise
plead a specific amount of damages.
Plaintiff does allege that
indignity, fear, shame, damage to his good name and reputation,
mortification, damage in his business and profession, loss of
(Doc. #2, ¶¶ 18, 23.)
When the amount
in controversy is not apparent on the face of the Complaint, the
Court looks to the Notice of Removal and defendant must prove by
a preponderance of the evidence that the amount in controversy
exceeds the federal jurisdictional amount.
Williams v. Best Buy
Co., Inc., 269 F.3d 1316, 1319 (11th Cir. 2001).
In doing so,
Pretka v. Kolter City Plaza II, Inc., 608 F.3d
744, 755 (11th Cir. 2010).
Defendant filed the Notice of Removal (Doc. #1) on the basis
of the diversity of citizenship, and an amount in controversy
Defendant attached the Affidavit of Joseph
Centrich, Esq. (Doc. #1-4, Exh. D) stating that plaintiff’s counsel
made an oral demand for an amount exceeding $75,000, and therefore
the requisite amount in controversy was met.
A settlement offer can constitute “other paper” under 28
U.S.C. § 1446(b).
Lowery v. Alabama Power Co., 483 F.3d 1184,
1213 (11th Cir. 2007).
A “settlement offer, by itself, may not
be determinative, [but] it counts for something.
Ins. Co., 31 F.3d 1092, 1097 (11th Cir. 1994).
Burns v. Windsor
commonly reflect puffing and posturing, and such a settlement offer
is entitled to little weight in measuring the preponderance of the
On the other hand, settlement offers that provide
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specific information. . . to support [the plaintiff's] claim for
damages suggest the plaintiff is offering a reasonable assessment
of the value of [his] claim and are entitled to more weight.”
Jackson v. Select Portfolio Servicing, Inc., 651 F. Supp. 2d 1279,
omitted)(alterations in original).
In a second Affidavit of Joseph Centrich, Esq. (Doc. #14-1,
Exh. A)1 counsel more specifically states that the amount conveyed
by plaintiff’s counsel was $200,000, and when asked how the sum
was reached, plaintiff’s counsel responded that it was due to the
serious nature of the alleged defamatory statements, including
drug possession charges, the nature of plaintiff’s community and
the impact the statements had on his business reputation and
opportunities, and both Plaintiff and his wife had their careers
put in jeopardy.
(Id., ¶ 8.)
Given the nature of the claim, the
type of damages sought, and the specifics provided by plaintiff’s
counsel with regard to the settlement offer, the Court finds that
Defendant also filed the Affidavit of Scott Konpka, Esq.
(Doc. #14-3, Exh. C) indicating that plaintiff’s counsel was emailed on the date the Motion to Remand was filed and counsel
refused to stipulate to an amount less than $75,000. Post-removal
evidence may be considered “only if relevant to that period of
Sierminski v. Transouth Fin. Corp., 216 F.3d 945, 949
(11th Cir. 2000)(quoting Allen v. R&H Oil Co., 63 F.3d 1326, 1335
(5th Cir. 1995)). The request for a stipulation was made after
removal and after the motion to remand was filed with the Court.
Therefore, the refusal to stipulate was not considered.
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defendant has met its burden to establish the amount in controversy
as of the time of removal.
Accordingly, it is hereby
1. Plaintiff's Motion for Remand and Motion for Award of
Attorneys' Fees (Doc. #9) is DENIED.
2. Plaintiff shall file a response to the pending Motion to
Dismiss (Doc. #6) within ten (10) days of this Order.
Endorsed Order, Doc. #16.)
3. The parties shall hold their case scheduling conference
within ten (10) days of this Order.
(See Endorsed Order,
DONE and ORDERED at Fort Myers, Florida, this
Counsel of Record
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