Russell v. Target Corporation

Filing 11

OPINION AND ORDER denying 5 Motion to Remand to State Court. Signed by Judge John E. Steele on 8/11/2014. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ELISABETH RUSSELL,
Plaintiff,
v.

Case No: 2:14-cv-377-FtM-29CM

TARGET CORPORATION,
Defendant.
OPINION AND ORDER
This matter comes before the Court on plaintiff's Motion for
Remand (Doc. #5) filed on July 17, 2014.

Defendant filed a

Memorandum of Law in Opposition (Doc. #6) on July 23, 2014.
Plaintiff argues that reliance on a pre-suit demand letter was
insufficient to support the amount in controversy at the time of
removal.
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).

Defendant filed a Notice

of/Petition for Removal of Civil Action (Doc. #1) indicating that
it is a Minnesota corporation with its principal place of business
in the State of Minnesota.

(Doc. #1, p. 3.)

Defendant also

states that plaintiff is domiciled in Lee County, Florida.

(Id.)

Defendant alleges that the amount in controversy is met based on
pre-suit correspondence from plaintiff’s counsel.

(Id., pp. 3-

4.)
The parties do not dispute the diversity of their citizenship.
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
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, as in
this case, 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.

Pretka v. Kolter City Plaza II, Inc., 608 F.3d

744, 755 (11th Cir. 2010).

Settlement offers may constitute

“other

of

paper”

for

purposes

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establishing

the

amount

in

controversy.

Lowery v. Alabama Power Co., 483 F.3d 1184, 1213

n.62 (11th Cir. 2007)(citing 28 U.S.C. § 1446(a)).
Defendant filed an Affidavit of Joseph Michael Sette, Esquire
(Doc. #1-1, Exh. A) stating that plaintiff demanded $245,000, based
on injuries, impairments, damages and losses, and past medical
bills of the specified amount of $64,397.36.

Plaintiff argues

that damages remain too speculative to determine the amount in
controversy or support removal, and the settlement offer itself
may not be determinative.

See, e.g., Jackson v. Select Portfolio

Servicing, Inc., 651 F. Supp. 2d 1279, 1281 (S.D. Ala. 2009).
This

case

is

distinguishable.

In

the

Complaint

(Doc.

#2),

plaintiff alleges that she “suffered bodily injury and resulting
pain

and

suffering,

disability,

loss

of

the

capacity

of

the

enjoyment of life, medical care and treatment expenses, loss of
earnings, and loss of ability to earn money.

The losses are either

permanent or continuing and Plaintiff, Elisabeth Russell, will
suffer losses in the future.”

(Doc. #2, ¶¶ 11, 16.)

The Court

finds that the specified incurred medical expenses coupled with
the allegations of permanent or continuing losses, more than
adequately

meet

the

requisite

amount

in

controversy

by

a

preponderance of the evidence, and that defendant met its burden.
Accordingly, it is hereby

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ORDERED:
Plaintiff's Motion for Remand (Doc. #5) filed on July 17,
2014 is DENIED.
DONE and ORDERED at Fort Myers, Florida, this
of August, 2014.

Copies:
Counsel of Record

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11th

day