Ellison v. Coca-Cola Refreshments USA, Inc.
Filing
18
OPINION AND ORDER denying 9 Motion to Remand to State Court. Signed by Judge John E. Steele on 11/6/2015. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
PATRICIA E. ELLISON,
Plaintiff,
v.
Case No: 2:15-cv-00246-FTM-29MRM
COCA-COLA REFRESHMENTS
USA, INC.
Defendant.
OPINION AND ORDER
This matter comes before the Court on Plaintiff’s Motion to
Remand (Doc. #9) on May 18, 2015.
#10) on May 29, 2015.
Defendant filed a Response (Doc.
For the reasons set forth below, the motion
is denied.
Plaintiff Patricia E. Ellison filed a negligence action in
state court in which she claimed she suffered bodily injury and
pain and suffering due to Defendant negligently erecting a product
display case that fell and struck Plaintiff.
(Doc. #2, ¶¶ 2-3.)
Plaintiff claims that as a result, her damages include pain and
suffering,
disability,
disfigurement,
mental
anguish,
loss
of
capacity for the enjoyment of life, expenses of hospitalization,
medical and nursing care treatment, loss of earnings, loss of
ability to earn money, and aggravation of a previously existing
condition.
(Id.)
Excluding costs and attorney’s fees, the claim
1
asserted is for damages in excess of $15,000, the state circuit
court jurisdictional amount.
(Id. at ¶ 1.)
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.
Because
Defendant seeks federal jurisdiction, Defendant carries the burden
to establish all components of 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,
2
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.
Therefore, the issue is
whether Defendant’s Notice of Removal has plausibly alleged that
the amount in controversy exceeds $75,000.
In the Complaint, Plaintiff Patricia E. Ellison alleges that
she suffered bodily injury as a result of Defendant’s negligence.
(Doc. #2, ¶¶ 2-3.)
She seeks damages for past and current medical
expenses (Doc. #1-4, ¶¶ 4, 9; Doc. #2, ¶ 3; Doc. #9, ¶ 7), future
medical expenses (Doc. #1-4, ¶ 4; Doc. #2, ¶ 3), lost income (Doc.
#1-4, ¶ 5; Doc. #9, ¶ 7), and lost earning capacity (Doc. #1-4, ¶
6).
Based on these asserted damages, Defendant alleges that the
amount in controversy exceeds $75,000.
(Doc. #1.)
In support,
Defendant points to the following facts: (1) Plaintiff refuses to
provide an amount in controversy or stipulate to damages (Doc. #1,
¶ 19; Doc. #1-3, ¶ 5; Doc. #1-6, ¶ 1; Doc. #1-8; Doc. #1-10; Doc.
#1-12); (2) Plaintiff concedes that her total medical expenses
thus far are just under $15,000 (Doc. #9, ¶ 7); (3) the $15,000 of
conceded medical expenses does not include physical/chiropractic
treatment (Doc. #1, ¶ 37); (4) Plaintiff has only disclosed past
3
medical expenses from two of the nine doctors she saw (Doc. #1, ¶
37; Doc. #1-16; Doc. #1-17); and (5) Plaintiff seeks additional
recovery for lost income and loss of future earning capacity (Doc.
#1-4, ¶ 6).
In response, and in apparent contradiction to her
allegations in the Complaint, Plaintiff argues that “this is not
a case involving a significantly debilitating personal injury,”
(Doc. #9, ¶ 4), and that “the possibility that the claim could be
valued over $75,000 does not” suffice for federal jurisdiction
(Id. at ¶ 8).
As the Eleventh Circuit has explained, there are many reasons
why
a
plaintiff
Williams,
296
would
F.3d
refuse
at
to
1320.
stipulate
Therefore,
to
damage
as
in
amount.
this
case,
Plaintiff’s refusal to stipulate to the amount of damages adds
little weight.
But, the Court is satisfied that Defendant has
plausibly alleged that the amount in controversy exceeds $75,000
for following reasons.
According to Plaintiff’s interrogatory response, she has seen
a total of nine doctors subsequent to her injury.
19.)
Plaintiff has only disclosed past medical expenses from two
of the nine doctors she saw.
17.)
(Doc. #1-4; ¶
(Doc. #1, ¶ 37; Doc. #1-16; Doc. #1-
Plaintiff concedes that her total medical expenses thus far
are just under $15,000, but it is unclear which medical expenses
are included in that amount.
that
this
amount
does
not
(Doc. #9, ¶ 7.)
include
4
Defendant alleges
calculations
regarding
physical/chiropractic treatment costs, and Plaintiff offers no
evidence to rebut this allegation.
(Doc. #1, ¶ 37.)
Defendant
has calculated the total cost of physical/chiropractic treatments
to be between $7,000 and $10,500.
(Id. at n. 12.)
The Court finds
this estimate to be reasonable, as Plaintiff has stated in February
2015 that she sees the chiropractor three times per week to ease
the pain of headaches, (Doc. #1-4, ¶ 4), and according to the
chiropractic records beginning in February 2013, each session
costs $40 (Doc. #1-17).
While these records are incomplete, there
is no indication from Plaintiff’s interrogatory response or Motion
to Remand that she ever stopped receiving chiropractic treatment.
Therefore, as Defendant argues, she would have seen a chiropractor
approximately 200 times, making her chiropractic bill roughly
$8,000.
In addition to recovery for medical expenses, Plaintiff also
seeks additional recovery for lost income and loss of earning
capacity.
Plaintiff stated that she has a loss of income of near
$20,000. (Doc. #9, ¶ 7.) She seeks additional unspecified damages
for loss of future earning capacity.
(Doc. #1-4, ¶ 6.)
According
to Plaintiff’s interrogatory response, she earns $11.01 per hour. 1
(Doc. #1-4, ¶ 7.)
She also stated that before the accident, she
1The
exact pay rate has been redacted from Plaintiff’s
interrogatory response (Doc. #1-4); however, Defendant uses $11.01
in the calculations, and Plaintiff does not contradict this rate.
5
worked approximately 30 hours per week, but since the accident she
has only been able to work five to eight hours per week.
(Id.)
She further stated that after the age of 66, if not for the
accident, she would have been able to work 40+ hours per week.
(Id.)
Using this information, Defendant has calculated the loss
of earning capacity from November 6, 2013 and April 15, 2015 to be
approximately $27,000.
(Doc. #1, ¶¶ 24, 34, n. 12.)
Plaintiff
does not contradict this amount other than to argue that it is
speculative.
(Doc. #9, ¶¶ 7-8.)
The Court finds Defendant’s
estimate reasonable.
Combining
Defendant’s
physical/chiropractic
care
reasonable
and
one
year
estimates
of
lost
wages
for
with
Plaintiff’s reported $15,000 in already-incurred medical bills
results in a total of approximately $50,000 in accrued damages. 2
As alleged by Defendant and unchallenged by Plaintiff, this amount
does not include medical bills from seven other doctors, future
medical expenses, pain and suffering, and additional lost wages
incurred after April 2015.
Accordingly, the Court concludes that
Defendant has plausibly alleged that the amount in controversy at
the time of removal exceeded $75,000.
Accordingly, it is hereby
2Reported
medical bills ($15,000) + physical/chiropractic
treatment ($8,000) + one year of lost wages ($27,000) = $50,000
total.
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ORDERED:
Plaintiff’s Motion to Remand (Doc. #9) is DENIED.
DONE AND ORDERED at Fort Myers, Florida, this
November, 2015.
Copies:
Counsel of record
7
6th
day of
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