Horne v. Kelly Services, Inc.

Filing 5

ORDERED: Defendant Kelly Services, Inc. shall have until October 14, 2017, to provide the Court with sufficient information so that it can determine whether it has jurisdiction over this action. See Order for details. Signed by Judge Marcia Morales Howard on 9/27/2017. (PTB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
JANICE HORNE, individually and as
natural mother and guardian of A.C.,
a minor,
Plaintiff,
v.

Case No. 3:17-cv-974-J-34MCR

KELLY SERVICES, INC., a foreign
for-profit corporation,
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) (“It 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 September 19, 2017, Defendant Kelly Services, Inc. (Kelly Services) filed a notice
of removal notifying the Court of its intent to remove this action to the United States District
Court for the Middle District of Florida, Jacksonville Division, and purporting to set forth the
facts establishing that the Court has jurisdiction over this action. See Notice of Removal
(Doc. No. 1; Notice) at 1-4. Specifically, Kelly Services asserts that the Court has jurisdiction
because there is complete diversity of citizenship between the parties and the amount in
controversy exceeds $75,000.00, in accordance with 28 U.S.C. § 1332, and therefore, the
action is removable pursuant to 28 U.S.C. § 1441. See id. In support of this assertion, Kelly
Services declares that “Plaintiff Janice Horne was at all times relevant a resident of Duval
County . . . ”. Id. at 2 (emphasis added). However, such an allegation does not adequately
identify the citizenship of Plaintiff Janice Horne (Horne), and the Complaint and Demand for
Jury Trial (Doc. No. 2; Complaint) does not offer sufficient additional information to satisfy
the Court’s jurisdictional inquiry.
For a court to have diversity jurisdiction pursuant to 28 U.S.C. § 1332(a), “all plaintiffs
must be diverse from all defendants.” Univ. of S. Ala., 168 F.3d at 412. To establish
diversity over a natural person, a complaint must include allegations of the person’s
citizenship, not where he or she resides. See Taylor v. Appleton, 30 F.3d 1365, 1367 (11th
Cir. 1994). A natural person’s citizenship is determined by his or her “domicile,” or “the place
of his true, fixed, and permanent home and principal establishment . . . 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) (quotation and citation omitted).

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Because the Notice discloses Horne’s residence, rather than her domicile or state of
citizenship, the Court finds that Kelly Services has not alleged the facts necessary to
establish the Court’s jurisdiction over this case. “Citizenship, not residence, is the key fact
that must be alleged in the complaint to establish diversity for a natural person.” Taylor, 30
F.3d at 1367 (emphasis supplied); see also Miss. Band of Choctaw Indians v. Holyfield, 490
U.S. 30, 48 (1989) (“‘[d]omicile’ is not necessarily synonymous with ‘residence’”).
Additionally, upon review of the Notice and Complaint, the Court finds that Kelly
Services fails to allege sufficient facts to plausibly demonstrate that the amount in
controversy exceeds $75,000. In the Complaint, Horne alleges that her damages exceed
$15,000.00, exclusive of interest, fees, and costs. See Complaint ¶ 1. Horne asserts that
as a result of Kelly Services’ negligence, her minor son “suffered serious bodily injury and
resulting pain and suffering, disability, disfigurement, mental anguish, loss of capacity for
enjoyment of life, expenses of hospitalization, medical and nursing care, and other treatment,
loss of ability to earn future wages, and aggravation of previously existing conditions.” Id.
¶ 18. She further alleges that his injuries are “permanent or continuing.” Id. In addition,
Horne brings a loss of consortium claim and alleges that she “has incurred medical bills, lost
wages, and other incidental expenses in the assistance, care and treatment of her son” and
that “she will continue to incur said bills and other expenses into the future.” Id. ¶ 22. In
support of removal, counsel for Kelly Services merely points to these allegations before
concluding that “the foregoing damage allegations place the amount in controversy within
the Court’s jurisdiction.” See Notice ¶ 5.

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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 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).1

1

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
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Here, Kelly Services fails to present a “plausible allegation” of the amount in
controversy. Kelly Services’ recitation of the generic, vague and categorical allegations of
the Complaint does not provide the Court with any specific, factual information by which to
determine whether Horne’s damages plausibly exceed the jurisdictional threshold. Indeed,
based on the allegations in the Notice and Complaint, the Court can do no more than
speculate regarding the nature and severity of her minor son’s injuries. Thus, “without facts
or specific allegations, the amount in controversy [can] be ‘divined [only] by looking at the
stars’–only through speculation–and that is impermissible.” Id. at 753-54 (third alteration in
original) (quoting Lowery v. Ala. Power Co., 483 F.3d 1184, 1209, 1215 (11th Cir. 2007)).
In light of Horne’s vague allegations of damages, and in the absence of any information
regarding the nature of her minor son’s injuries, or the cost of his subsequent medical care,
the Court is unable to determine whether the amount in controversy requirement is satisfied
here. As such, Kelly Services has failed to provide the Court with sufficient information for
the Court to determine whether it has jurisdiction over this action.
In light of the foregoing, the Court will give Kelly Services an opportunity to establish
the amount in controversy, diversity of citizenship between the parties, and that this Court
has jurisdiction over the action.2 Accordingly, it is ORDERED:
1

(...continued)
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 nonCAFA removal and citing to Pretka as authority regarding removal procedures).
2

The party seeking to invoke the Court’s diversity jurisdiction bears the burden of establishing
by a preponderance of the evidence that the jurisdictional prerequisites are met. See McCormick, 293
F.3d at 1257; see also Taylor, 30 F.3d at 1367 (noting that the “pleader must affirmatively allege facts
(continued...)
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Defendant Kelly Services, Inc. shall have until October 14, 2017, to provide the Court
with sufficient information so that it can determine whether it has jurisdiction over this action.
DONE AND ORDERED on September 27, 2017, in Jacksonville, Florida.

lc24
Copies to:
Counsel of Record

2

(...continued)
demonstrating the existence of jurisdiction”).
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