Mangano et al v. Garden Fresh Restaurant Corp.

Filing 19

OPINION AND ORDER granting 8 Plaintiffs' Motion to Remand to State Court. See Opinion and Order for details. The Clerk is directed to remand the case to the Circuit Court of the Twentieth Judicial Circuit, in and for Collier County, Florida, and to transmit a certified copy of this Order to the Clerk of that Court. The Clerk is further directed to terminate all pending motions and deadlines and close this case. Signed by Judge John E. Steele on 5/11/2015. (MAW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ANNE MANGANO
MANGANO,

and

JOSEPH

Plaintiffs,
v.

Case No: 2:15-cv-123-FtM-29CM

GARDEN
CORP.,

FRESH

RESTAURANT

Defendant.
OPINION AND ORDER
This matter comes before the Court on Plaintiffs’ Motion to
Remand (Doc. #8) filed on March 18, 2015.

Defendant filed a

Response (Doc. #9) on March 26, 2013, to which Plaintiffs filed a
Reply (Doc. #11) on April 6, 2015.

For the reasons set forth

below, the motion is granted.
Plaintiffs filed a run-of-the-mill slip and fall case in state
court in which Plaintiff Anne Mangano claimed she slipped and fell
in Defendant’s restaurant due to its negligence, and Plaintiff
Joseph Mangano claimed that he suffered a loss of consortium as a
result of his wife’s fall.
of

$15,000,

the

state

Both claims asserted damages in excess
circuit

court

jurisdictional

amount.

Defendant filed a Notice of Removal (Doc. #1) based upon diversity
of citizenship and damages in excess of $75,000.

The parties

agree there is complete diversity of citizenship, but disagree as
to the amount in controversy component.

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).
In 2011, Congress passed the Federal Courts Jurisdiction and
Venue Clarification Act (JVCA), which “clarifies the procedure in
order when a defendant's assertion of the amount in controversy is
challenged.”

Dart Cherokee Basin Operating Co., LLC v. Owens, 135

S. Ct. 547, 554 (2014).

Under the JVCA, where removal is based

upon diversity jurisdiction, “the sum demanded in good faith in
the

initial

controversy.”

pleading

shall

be

deemed

28 U.S.C. § 1446(c)(2).

to

be

the

amount

in

As an exception to this

rule, the Notice of Removal may assert the amount in controversy
if the initial pleading seeks a money judgment, “but the State
practice either does not permit demand for a specific sum or
permits recovery of damages in excess of the amount demanded” and
“the district court finds, by the preponderance of the evidence,
that the amount in controversy exceeds the amount specified in
section 1332(a).”

Id. § 1446(c)(2)(A), (B).

A Notice of Removal

must plausibly allege the jurisdictional amount, not prove the
amount.

Dart, 135 S. Ct. at 554.

In this case, the state court complaint has not demanded any
particular sum, and Florida practice permits recovery in excess of
the amount demanded in the complaint.
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Therefore, the issue is

whether Defendant’s Notice of Removal has plausibly alleged that
the amount in controversy exceeds $75,000.
The Notice of Removal premises its amount in controversy on
two factors:

(1) the nature of the damages Plaintiff Anne Mangano

claims in the Complaint, and (2) Plaintiffs’ refusal to stipulate
that their damages do not exceed $75,000.

The Court finds neither

of these is sufficient.
In the Complaint, Plaintiff Anne Mangano alleges that she
slipped on the floor at one of Defendant’s restaurants and:
was caused to be injured in and about her body and
extremities, was caused to sustain significant
scarring
and
disfigurement,
suffered
pain
therefrom, both mental and physical, was caused to
undergo treatment from various medical doctors and
related medical care for treatment of her injuries;
was caused to suffer a diminishment in her ability
to lead a normal life and to engage in her normal
activities; was caused to incur obligations for
large sums of money for treatment for her injuries;
and the injuries suffered by her are permanent in
nature with a reasonable degree of medical
probably, and all of said losses and impairments
will continue in the future.
(Doc. #2, ¶ 12.)

Additionally, Plaintiff Joseph Mangano alleges

that as a result of his wife’s injuries “he has lost his wife’s
services, society, companionship, and consortium.”

(Id. at ¶ 14.)

Further, each Plaintiff alleges that his or her damages exceed the
$15,000 jurisdictional amount for Florida’s circuit courts.

(Id.

at p. 4.)
According to Defendant, the Court should infer from these
allegations that Plaintiffs necessarily seek more than $75,000 in

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damages.

In

response,

Plaintiffs’

counsel

has

provided

an

affidavit in which he states that his review of Plaintiffs’
documentation reveals “that the recoverable medical expenses are
significantly less than $75,000.”

(Doc. #10-1, ¶ 8.)

In the

Court’s experience, the types of allegations in the Complaint are
more boilerplate than factually descriptive of a given case.

The

Court finds no reason to discredit the testimony of Plaintiffs’
counsel that the alleged injuries did not result in significant
recoverable medical expenses, although of course this is not the
entire measure of damages.
separate

claim

for

Even accounting for Joseph Mangano’s

damages

unrelated

to

his

wife’s

medical

expenses, the allegations in the Complaint are insufficient to
establish

a

preponderance

plausible
of

basis

evidence

to

which

believe

that

establishes

there
an

is

amount

a
in

controversy in excess of $75,000.
Defendant notes that Plaintiffs have refused to stipulate
that their damages do not exceed $75,000.

As the Eleventh Circuit

has explained, there are many reasons why a plaintiff would refuse
such

a

stipulation.

Williams,

269

F.3d

at

1320.

In

the

circumstances of this case, Plaintiffs’ refusal to stipulate to
the amount of damages adds little weight, and is insufficient to
plausibly show the necessary amount in controversy.
The prior version of the removal and remand statutes was
interpreted to allow defendant to use affidavits, declarations, or
other

documentation

to

establish
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the

amount

in

controversy.

Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 755 (11th Cir.
2010).

Assuming that practice continues, the Court considers

defense

counsel’s

affidavit

stating

that

Plaintiffs’

counsel

advised him that Plaintiffs’ claim is a “bigger case,” and that
Plaintiffs’ medical bills alone were “probably in the $75,000
range.”

(Doc. #9-4.)

In response, Plaintiffs’ counsel states

that he made no such representations.

(Doc. #10-1.)

The Court

finds that these competing affidavits do not aid Defendant in
plausibly establishing the amount in controversy.

Moreover, even

if the conversation in question did take place as Defendant’s
counsel recollects, it is akin to a settlement offer, which
“commonly reflect[s] puffing and posturing, and . . . is entitled
to little weight in measuring the preponderance of the evidence.”
Kilmer v. Stryker Corp., No. 14-CV-456, 2014 WL 5454385, at *4
(M.D. Fla. Oct. 27, 2014) (quoting Jackson v. Select Portfolio
Servicing, Inc., 651 F. Supp. 2d 1279, 1281 (S.D. Ala. 2009)).
In sum, the Court concludes that Defendant has failed to
plausibly establish that a preponderance of the evidence exists to
establish that the amount in controversy at the time of removal
exceeded $75,000.
Accordingly, it is hereby
ORDERED:
1.

Plaintiffs’ Motion to Remand (Doc. #8) is GRANTED.

The

Clerk is directed to remand the case to the Circuit Court of the
Twentieth Judicial Circuit, in and for Collier County, Florida,
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and to transmit a certified copy of this Order to the Clerk of
that Court.
2.

The Clerk is further directed to terminate all pending

motions and deadlines and close this case.
DONE and ORDERED at Fort Myers, Florida, this
of May, 2015.

Copies:
Counsel of Record

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11th

day