Pappafotis et al v. Rev Recreation Group, Inc.

Filing 5

ORDERED: Defendant REV Recreation Group, Inc., f/k/a Allied Recreation Group, Inc. shall have up to and including July 13, 2017, to file an amended notice of removal demonstrating that this Court has subject matter jurisdiction over this case. See Order for details. Signed by Judge Marcia Morales Howard on 6/30/2017. (MHM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
GEORGE PAPPAFOTIS and
REBECCA PAPPAFOTIS,
Plaintiffs,
Case No. 3:17-cv-728-J-34JRK
vs.
REV RECREATION GROUP, INC. f/k/a
ALLIED RECREATION GROUP, INC.,
Defendant.
/
ORDER
THIS CAUSE is before the Court sua sponte. Federal courts are courts of limited
jurisdiction and therefore have an obligation to inquire into their subject matter jurisdiction.
See Kirkland v. Midland Mortg. Co., 243 F.3d 1277, 1279-80 (11th Cir. 2001). This
obligation exists regardless of whether the parties have challenged the existence of subject
matter jurisdiction. See Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir.
1999) (“[I]t is well settled that a federal court is obligated to inquire into subject matter
jurisdiction sua sponte whenever it may be lacking.”). “In a given case, a federal district
court must have at least one of three types of subject matter jurisdiction: (1) jurisdiction
under a specific statutory grant; (2) federal question jurisdiction pursuant to 28 U.S.C. §
1331; or (3) diversity jurisdiction pursuant to 28 U.S.C. § 1332(a).” Baltin v. Alaron Trading
Corp., 128 F.3d 1466, 1469 (11th Cir. 1997).
On June 26, 2017, Defendant REV Recreation Group, Inc., f/k/a Allied Recreation
Group, Inc. (REV) filed Defendant’s Notice of Removal (Doc. 1; Notice) removing this case
from the Fourth Judicial Circuit Court in and for Duval County, Florida. See Notice at 1. In

the Notice, REV asserts that this Court has jurisdiction over the instant action because
Plaintiffs George and Rebecca Pappafotis assert a claim under the Magnuson Moss
Warranty Act, 15 U.S.C. § 2301 et. seq. (MMWA) and the amount in controversy exceeds
$50,000. See Notice at 1-2; see also 15 U.S.C. § 2310(d)(3)(B). However, REV has failed
to allege sufficient facts to plausibly demonstrate that the amount in controversy exceeds
$50,000.1 See Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S. Ct. 547, 554
(2014).
Where a defendant removes an action from state court to federal court, the
defendant “bears the burden of proving that federal jurisdiction exists.” See Williams v.
Best Buy Co., Inc., 269 F.3d 1316, 1319 (11th Cir. 2001).

In Dart Cherokee Basin

Operating Co., the Supreme Court explained that a defendant’s notice of removal must
include “a plausible allegation that the amount in controversy exceeds the jurisdictional
threshold.” See Dart Cherokee Basin Operating Co., 135 S. Ct. at 554. If the plaintiff
contests the allegation, or the court questions it, a defendant must then present evidence
establishing that the amount in controversy requirement is met. Id. (citing 28 U.S.C. §
1446(c)(2)(B)); see also Dudley v. Eli Lilly & Co., 778 F.3d 909, 912 (11th Cir. 2014).
Notably, “[a] conclusory allegation in the notice of removal that the jurisdictional amount is
satisfied, without setting forth the underlying facts supporting such an assertion, is
insufficient to meet the defendant’s burden.” See Williams, 269 F.3d at 1320. Indeed, the
Court may not speculate or guess as to the amount in controversy. See Pretka v. Kolter
City Plaza II, Inc., 608 F.3d 744, 752 (11th Cir. 2010). Rather, a removing defendant should

1

REV also asserts that the Court has diversity jurisdiction over this action pursuant to 28 U.S.C. § 1332. See
Notice at 2. However, because REV has failed to allege adequate facts plausibly demonstrating that the
amount in controversy exceeds the $50,000 jurisdictional threshold of the MMWA, REV has likewise failed
to meet the $75,000 jurisdictional threshold of the diversity statute.

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make “specific factual allegations establishing jurisdiction” and be prepared to “support
them (if challenged by the plaintiff or the court) with evidence combined with reasonable
deductions, reasonable inferences, or other reasonable extrapolations.”

Id. at 754

(emphasis added). In those circumstances, a court is able to determine the amount in
controversy without relying on impermissible “conjecture, speculation, or star gazing.”
Id. at 754 (emphasis added).2
This matter arises out of George and Rebecca Pappafotis’ purchase of an allegedly
defective motor home warranted by REV. See Complaint and Jury Demand (Doc. 2;
Complaint) at 1-11. In the Complaint, the Pappafotises assert a single claim for breach of
an express warranty in violation of the MMWA. See Complaint at 11-12. As relief, the
Pappafotises seek “the difference in value of the vehicle as promised and as actually
delivered,” “special circumstantial damages,” “actual incidental and consequential
damages,” as well as “costs, interest and actual attorneys’ fees.” See id. at 12. However,
the Complaint includes no information as to the amounts of damages actually sustained in
these various categories beyond an allegation that the amount in controversy exceeds
“fifteen thousand dollars ($15,000.00), exclusive of interest and costs.” See id. at 1. In
support of removal, REV maintains that the amount in controversy is satisfied because the
Pappafotises are seeking “damages, a refund, and other relief allegedly arising out of their

2

The Court notes that Dart, Dudley and Pretka, all involved cases removed to federal court under the Class
Action Fairness Act of 2005 (CAFA). Because remand orders are not ordinarily reviewable on appeal, except
in class action cases, see 28 U.S.C. § 1447(d), § 1453(c), appellate decisions on removal usually involve
cases removed under CAFA. See, e.g., Pretka, 608 F.3d at 752. Nonetheless, with limited exception,
“CAFA’s removal provision expressly adopts the procedures of the general removal statute, 28 U.S.C. §
1446.” Pretka, 608 F.3d at 756-57 & n.11 (citations omitted). Thus, although the cases cited above involved
removal under CAFA, they interpret and apply the general removal procedures, and thus, the Court finds the
analysis of those cases applicable here. See Bender v. Mazda Motor Corp., 657 F.3d 1200, 1204 n.2 (11th
Cir. 2011) (addressing an appeal involving a non-CAFA removal and citing to Pretka as authority regarding
removal procedures).

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$ 202,092.94 purchase, use and ownership of a 2015 Fleetwood Southwind motor home.”
See Notice ¶¶ 1, 6.
However, upon review, the Court finds that REV’s reliance on the purchase price of
the allegedly defective motor home alone does not adequately demonstrate that the
jurisdictional threshold is met in this case. For breach of warranty claims under the MMWA,
courts turn to state law to determine the proper measure of damages. See Boyd v. Homes
of Legend, Inc., 188 F.3d 1294, 1298 (11th Cir. 1999). Florida law provides that:
[t]he measure of damages for breach of warranty is the difference at the
time and place of acceptance between the value of the goods accepted and
the value they would have had if they had been as warranted, unless special
circumstances show proximate damages of a different amount.
See Fla. Stat. § 672.714(2). As such, the amount in controversy is not the purchase price
of the motor home, but the difference between the purchase price of the motor home and
the value of the allegedly defective motor home on the date of purchase. See Burns v.
Winnebago Ind., Inc., No. 8:10-cv-1441-T-24MAP, 2010 WL 3190233, at *2 (M.D. Fla. Aug.
11, 2010) (“. . . since the proper measurement of Plaintiff’s damages for breach of warranty
is the diminished value of the RV on the date of sale due to its defective condition, the
Court cannot use the purchase price of the RV as the sole basis for finding that the
jurisdictional threshold has been met.”); see also Bentley v. Volkswagen Grp. of Am., Inc.,
No. 6:13-cv-1266-Orl-37KRS, 2013 WL 5927974, at *1 (M.D. Fla. Nov. 5, 2013) (“[T]he
proper measure of damages is the purchase price of a non-defective car less the value of
the defective car when it was purchased.”); Anderson v. Lotus Cars USA, Inc., No. 8:06cv-1944-T-17-TBM, 2007 WL 1229105, at *2 (M.D. Fla. Apr. 26, 2007). Thus, in the
absence of any information regarding the value of the allegedly defective motor home, the
Court is unable to determine whether the amount in controversy requirement is satisfied
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here. “[W]ithout facts or specific allegations, the amount controversy [can] be ‘divined
[only] by looking at the stars’–only through speculation–and that is impermissible.” Pretka,
608 F.3d at 753-54 (third alteration in original) (quoting Lowery v. Ala. Power Co., 483 F.3d
1184, 1209, 1215 (11th Cir. 2007)). As such, REV has failed to provide the Court with
sufficient information for the Court to determine whether it has jurisdiction over this action.3
In light of the foregoing, it is
ORDERED:
Defendant REV Recreation Group, Inc., f/k/a Allied Recreation Group, Inc. shall
have up to and including July 13, 2017, to file an amended notice of removal demonstrating
that this Court has subject matter jurisdiction over this case.
DONE AND ORDERED in Jacksonville, Florida, this 30th day of June, 2017.

lc11
Copies to:
Counsel of Record
Pro Se Parties

3

When a case is removed from state to federal court, the removing party has the burden of establishing that
federal jurisdiction exists. See Williams, 269 F.3d at 1319.

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