Kajoshaj v. Circle K Stores, Inc.

Filing 22

ORDER denying as moot 7 Motion to Remand to State Court; denying as moot 8 Motion to Remand to State Court; denying 10 Motion to Remand to State Court. Signed by Judge John E. Steele on 6/17/2014. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
SKENDER KAJOSHAJ,
Plaintiff,
v.

Case No: 2:14-cv-170-FtM-29CM

CIRCLE K STORES, INC.,
Defendant.
ORDER
This matter comes before the Court on plaintiff's Amended
Motion for Remand (Doc. #10) filed on April 18, 2014.1

Defendant

filed

2,

a

Plaintiff

Response

in

Opposition

argues

that

the

(Doc.

removal

was

#14)

on

May

untimely,

and

2014.
in

the

alternative, that the amount in controversy was not established by
a preponderance of the evidence at the time of removal.
A. Timeliness
The Complaint (Doc. #2) was originally filed in state court
on October 21, 2013.

Defendant appeared and filed an Answer and

Defenses (Doc. #3) on December 6, 2013, but did not file a Notice
of Removal until March 24, 2014.

On the face of the Complaint

(Doc. #2), plaintiff seeks the state jurisdictional amount of
$15,000.00, but does not otherwise plead a specific amount of
damages.

1

Therefore, the Complaint did not provide a basis for

Plaintiff filed two previous versions that will be denied
as moot.

removal within 30 days of receipt.

28 U.S.C. § 1446(a).

“[I]f

if the case stated by the initial pleading is not removable, a
notice of removal may be filed within 30 days after receipt by the
defendant, through service or otherwise, of a copy of an amended
pleading, motion, order or other paper from which it may first be
ascertained that the case is one which is or has become removable.”
28 U.S.C. § 1446(b)(3).

In this case, defendant removed upon

review of plaintiff’s Answers to Defendant’s Interrogatories (Doc.
#14-2), which were provided on February 28, 2014, alleging medical
expenses totaling $107,498.54.

The Court finds that the Complaint

was timely removed within 30 days of the February 28, 2014,
Answers.
B. Amount in Controversy
As the party seeking federal jurisdiction, the burden is upon
defendant to establish diversity jurisdiction as of the date of
removal.

Sammie Bonner Constr. Co. v. W. Star Trucks Sales, Inc.,

330 F.3d 1308, 1310 (11th Cir. 2003); Williams v. Best Buy Co.,
269 F.3d 1316, 1319 (11th Cir. 2001).

The parties do not dispute

the diversity of their citizenship and the Notice of Removal
alleges that the parties are citizens of different States.
#1, ¶ 3.)

(Doc.

Thus, the issue is whether defendant has shown that it

is more likely than not that the amount in controversy exceeded
$75,000, exclusive of interest and costs, at the time of removal.
Roe v. Michelin N. Am., Inc., 613 F.3d 1058, 1061 (11th Cir. 2010).
“[C]ourts may use their judicial experience and common sense in
- 2 -

determining whether the case stated in a complaint meets federal
jurisdictional requirements.”

Id. at 1062.

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, defendant may use affidavits, declarations,

or other documentation.
F.3d

744,

755

speculating

as

(11th
to

the

Pretka v. Kolter City Plaza II, Inc., 608
Cir.

2010).

lost

wages

The
or

Court

finds,

permanent

without

injuries,

the

incurred medical expenses more than adequately meet the requisite
amount in controversy and that defendant met its burden.
Accordingly, it is hereby
ORDERED:
1.

Plaintiff’s previously filed Motions for Remand (Docs.

#7, #8) are DENIED as moot in light of the amended filing.
2.

Plaintiff's Amended Motion for Remand (Doc. #10), along

with the request for attorney’s fees and costs, is DENIED.
DONE and ORDERED at Fort Myers, Florida, this
of June, 2014.

Copies: Counsel of Record

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17th

day