Zelonka et al v. Gyarmati et al

Filing 18

OPINION AND ORDER denying 12 Motion to Remand to State Court. Signed by Judge John E. Steele on 8/1/2022. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
STEPHEN ZELONKA and JOAN
CARRILLO,
Plaintiffs,
v.

Case No:

2:22-cv-347-JES-NPM

BENEDICT GYARMATI and TIBOR
GYARMATI,
Defendants.
OPINION AND ORDER
This matter comes before the Court on plaintiffs' Motion to
Remand (Doc. #12) filed on June 30, 2022.

Defendants filed a

Response in Opposition (Doc. #17) on July 14, 2022.

For the

reasons set forth below, the motion is denied.
I.
On February 14, 2022, plaintiffs Stephen Zelonka and Joan
Carrillo filed a Complaint (Doc. #6) in Collier County Circuit
Court against Benedict Gyarmati and Tibor Gyarmati for negligence.
Tibor Gyarmati is the owner of the motor vehicle that Benedict
Gyarmati was operating at the time of a collision in Collier County
causing bodily injury to Stephen Zelonka, who was operating a
motorcycle at the time.

Joan Carrillo is the wife of Stephen

Zelonka and joins the suit for the loss of consortium of her spouse
(Counts II and IV).

Prior to filing suit, plaintiffs sent a demand

letter seeking in excess of $3 million.
with process on March 16, 2022.

Defendants were served

(Doc. #12-1.)

On April 27, 2022,

defendants filed an Answer and Affirmative Defenses (Doc. #7).
Plaintiffs filed Responses to Request for Admissions on May
4, 2022 (Doc. #1, ¶ 3) in which plaintiffs stated that they were
both citizens of the State of Florida and not citizens of the State
of Michigan, where both defendants are citizens.

On June 2, 2022,

defendants removed the case to federal court, alleging diversity
jurisdiction under 28 U.S.C. § 1332.

(Doc. #1.)

Defendants

assert the amount in controversy is met based on plaintiffs’ presuit demand letter dated October 13, 2021 (Doc. #1-7, Ex. G) and
that the diversity of citizenship is satisfied by the Responses to
Request for Admissions.
II.
As the party seeking federal jurisdiction, the burden is upon
defendants 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).

Defendants must also show

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).

Plaintiff seeks

to remand the case to state court, arguing that the notice of
removal was untimely and that there is an insufficient showing of
the requisite amount in controversy.

- 2 -

A. Timeliness of Notice of Removal
The Complaint filed on February 14, 2022, makes no allegations
regarding the parties’ citizenship.

Therefore, the case was not

then removable to federal court, and the time period for such
removal did not begin.

Rather,

[I]f 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).

Defendants rely on the Responses to

Requests for Admission as the ‘other paper’ which established
citizenship for the first time and started the 30-day time period
in which to remove the case.

(Doc. #17, p. 15.)

The Court agrees.

“Courts have included within the term ‘other paper’ responses to
requests
responses,

for

admissions,

deposition

estimating damages.”

settlement

testimony,

demand

offers,

interrogatory

letters,

and

emails

Brito v. Harris & GTS Transp. Corp., No. CV

322-038, 2022 WL 2835852, at *1 (S.D. Ga. July 20, 2022) (citing
Lowery v. Alabama Power Co., 483 F.3d 1184, 1212 n.62 (11th Cir.
2007) (citations omitted)).
Plaintiffs argue, however, that the removal was nonetheless
untimely because defendants knew complete diversity of citizenship
was present prior to the Complaint being filed.

- 3 -

(Doc. #12, p.

11.)

Plaintiffs argue that the crash report reflects a Florida

driver’s license and registration in the State of Florida, and the
report was included in the demand package sent to defendants prior
to filing suit.

(Id., p. 12.)

“Though ‘other paper’ is broadly defined and may include any
formal or informal communication received by a defendant, as a
matter of statutory construction, documents a defendant receives
prior to the commencement of a suit are not “other paper” under
section 1446(b)(3) because there is no case in which to trigger a
limitation on removal.”
v.

GeoVera

Specialty

Chabad Lubavitch of Pembroke Pines, Inc.
Ins.

Co.,

No.

5155718, at *3 (S.D. Fla. Nov. 5, 2021).

21-CV-61420-RAR,

2021

WL

See also Constas v. Home

Depot U.S.A., Inc., No. 6:21-CV-1578-WWB-DCI, 2022 WL 1224077, at
*3 (M.D. Fla. Mar. 18, 2022) (“[e]very court of appeals that has
addressed

whether

a

court

may

consider

a

defendant's

pre-

litigation knowledge or post-litigation knowledge from a source
other than the plaintiff to decide triggering of the 30-day removal
period has held no.”), report and recommendation adopted, No. 6:21CV-1578-WWB-DCI, 2022 WL 1224053 (M.D. Fla. Apr. 11, 2022).
The Traffic Crash Report completed on the scene by the Collier
County Sheriff’s Officer cannot be considered ‘other paper’ for
purposes

of

the

removal

statute.

Additionally,

even

if

considered, this document simply provides the residential address
of the driver, which is not necessarily the same as the domicile

- 4 -

required for federal diversity jurisdiction.

“A person’s domicile

is the place of his true, fixed, and permanent home and principal
establishment, and to which he has the intention of returning
whenever he is absent therefrom.”

McCormick v. Aderholt, 293 F.3d

1254, 1257-58 (11th Cir. 2002) (internal quotation marks and
citations omitted).

As a result, it could not be the triggering

information for removal, and the notice of removal was timely from
the Responses to Request for Admissions.
B. Amount in Controversy
Even if timely removed, plaintiffs assert that the notice of
removal insufficiently established the amount in controversy.

The

Complaint (Doc. #6) simply seeks the state court jurisdictional
minimum of “in excess of $30,000”.

Since the Florida “State

practice . . . permits recovery of damages in excess of the amount
demanded,”

a

defendant

is

required

to

establish

“by

the

preponderance of the evidence, that the amount in controversy
exceeds the amount specified in section 1332(a).”
1446(c)(2)(A),(B).

28 U.S.C. §

A Notice of Removal must plausibly allege the

jurisdictional amount, not prove the amount.

Dart Cherokee Basin

Operating Co., LLC v. Owens, 574 U.S. 81, 89 (2014).

“[W]hen a

district court can determine, relying on its judicial experience
and common sense, that a claim satisfies the amount-in-controversy
requirements,

it

need

not

give

- 5 -

credence

to

a

plaintiff's

representation that the value of the claim is indeterminate.”

Roe

v. Michelin N. Am., Inc., 613 F.3d 1058, 1064 (11th Cir. 2010).
In this case, defendants rely on a detailed pre-suit demand
to support an amount in controversy in excess of $75,000 because
it includes outstanding medical bills and estimated future medical
care of $425,378.79 (medical bills in the amount of $140,056.17
and future projected medical costs in the amount of $285,322.62).
(Doc. #1-7, pp. 19, 25-26, 29.)

Consideration of a pre-suit

demand, however, requires caution.
However, settlement demands often reflect
puffing and posturing; thus, courts may award
them little weight. Kilmer v. Stryker, Corp.,
No. 5:14-cv-456-OC-34PRL, 2014 WL 5454385, at
*4 (M.D. Fla. Oct. 27, 2014). Nonetheless, if
a demand letter provides specific information
to support the plaintiff's claim for damages,
the court may consider it relevant evidence.
Mitchell v. Fam. Dollar Stores of Fla., LLC,
No. 8:18-CV-1640-T-33AAS, 2018 WL 3548694, at
*1 (M.D. Fla. July 24, 2018).
Reyes v. Stockhill, 568 F. Supp. 3d 1288, 1293 (M.D. Fla. 2021).
Plaintiffs

respond

that

an

insurance

carrier

paid

an

amount

exceeding the total outstanding medical bills and estimated future
medical care listed in the demand, and therefore defendants can no
longer meet their burden.
In the Complaint, plaintiff Zelonka alleges that he suffered
bodily injury, disability, disfigurement, mental anguish, loss of
capacity

for

enjoyment

of

life,

hospitalization,

medical

and

nursing care treatment, loss of earnings, and losses that are

- 6 -

permanent or continuing.

(Doc. #6, ¶ 4.)

Plaintiffs filed suit

in state court asserting a value of over $100,000 for the case
after the payment from insurance.

(Doc. #1-2, p. 1.)

no indication that the other damages are now moot.
provides

that

Stephen

Zelonka

will

accept

liability insurance limits of $3 million.

the

There is
The Demand

bodily

injury

(Doc. #1-7, p. 29.)

Unlike Macon v. Alabama CVS Pharmacy, L.L.C., No. 3:21-CV-724-KFP,
2022 WL 1129641, at *3 (M.D. Ala. Apr. 15, 2022), the Demand goes
on in great detail about Stephen Zelonka’s permanent injuries and
“pain and suffering/effect on life and activities” as completely
life altering:
Every day Stephen struggles with this pain
that has permanently limited his range of
motion in his shoulder. He explains "it feels
like the joint is loose" and he can hear
"clicking"
sounds."
Stephen
has
issues
reaching over his head, lifting anything, or
putting strain on his shoulder. Stephen
underwent
extensive
physical
therapy
treatments for his pain and range of motion in
his left shoulder, but full range of motion
has not returned. Stephen also has to limit
the amount of walking he does. He continues to
be very careful especially walking on uneven
surfaces due to his injuries. The pain in his
left foot is still bothersome and he complains
that the tingling in his foot is still very
prominent. Doing daily chores or task around
the house can easily cause his foot to get
swollen. In fact, on most days he just wakes
up and it is already swollen.
His pain and pain have greatly affected his
ability to sleep, and he often wakes up in a
lot of discomfort. He avoids sleeping on his
left side due to his injuries. Once Stephen is

- 7 -

finally able to fall asleep the mental effects
from this crash come to life. Stephen will lay
in bed and have flashbacks of this horrific
crash and the extreme pain and trauma Mr.
Gyamarti has caused him.
Unfortunately,
his
pain
and
physical
limitations from the crash have forced him to
quit things he loved to do. Stephen was a very
active person that enjoyed living his life
with his family and friends. He would
frequently exercise, play tennis and do other
physical activities. This crash has forced him
to give up all of these things he once enjoyed
so much.
This crash has affected Stephen's personal,
emotional, and financial life in so many ways.
Stephen was immobile for nearly two months.
This impacted his marital relationship. He was
not able to do much of anything. The injuries
were so severe and so impactful, his wife Joan
had to cater to his every need day, and night.
He was on medical leave from work the entire
month of January and limited to only office
duty in February because of his injuries and
limitations from the crash.
Stephen deals with many reminders of this
crash every day. He now has permanent scars on
his knee, left leg, left arm and left
shoulder. These scars are a permanent reminder
of this horrible crash and how it has affected
Stephen's life. He also has a left shoulder
deformity from his shoulder injury that will
never go away. He will continue to need
physical therapy and possibly surgery on his
shoulder and left foot in the near future.
Stephen is worried about his future and what
it may hold. This crash has been life altering
for him and his family.
(Doc. #1-7, pp. 26-27.)

Plaintiffs also noted that there are no

caps or limits on past or future economic and non-economic damages.
(Id., p. 29.)

The Court finds that defendants can plausibly

- 8 -

support an amount in controversy that exceeds $75,000, even if the
settlement amount is set-off from the insurance proceeds.
Accordingly, it is hereby
ORDERED:
Plaintiffs' Motion to Remand (Doc. #12) is DENIED.
DONE and ORDERED at Fort Myers, Florida, this
August 2022.

Copies:
Counsel of Record

- 9 -

1st

day of