Payne v. J.B. Hunt Transport, Inc.

Filing 15

ORDER: Plaintiff's Motion for Remand 6 is DENIED. Defendant's Motion to Dismiss, or Alternatively, Motion to Strike 3 is DENIED. Within twenty-one (21) days of the date of this Order, Defendant shall answer or otherwise file a response to Plaintiff's complaint. Signed by Judge James S. Moody, Jr on 1/4/2016. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION

CARL JEFFREY PAYNE,
Plaintiff,
v.

Case No: 5:15-cv-517-Oc-30PRL

J.B. HUNT TRANSPORT, INC.,
Defendant.
________________________________/

ORDER
THIS CAUSE comes before the Court upon Plaintiff’s Motion for Remand (Doc.
6), Defendant’s response in opposition thereto (Doc. 8), Defendant’s Motion to Dismiss,
or Alternatively, Motion to Strike (Doc. 3), and Plaintiff’s response in opposition thereto
(Doc. 11). The Court, having reviewed the motions and responses, and being otherwise
fully advised in the premises, concludes that both Plaintiff’s motion to remand and
Defendant’s motion to dismiss should be denied.
BACKGROUND
Plaintiff Carl Jeffrey Payne initiated this action on August 11, 2015, in the Fifth
Judicial Circuit in and for Lake County, Florida, arising from injuries sustained by Plaintiff
while he was employed by Defendant. (Doc. 1). Plaintiff originally filed a claim for
workers’ compensation benefits, but Defendant and its insurance carrier denied the claim.
(Doc. 2 at 2). Plaintiff elected to dismiss his claim for workers’ compensation benefits and

instead filed a claim for negligence against Defendant. (Id.). Defendant removed the
action to this Court on the basis of diversity jurisdiction under 28 U.S.C. § 1332, asserting
that the parties are completely diverse and that the amount in controversy exceeds $75,000.
(Doc. 1). In response, Plaintiff filed a motion to remand arguing that Defendant has not
established an amount in controversy greater than $75,000. (Doc. 6). Plaintiff also
contends that even if Defendant could establish an amount in controversy greater than
$75,000, the case should be remanded under 28 U.S.C. § 1445(c) because Plaintiff’s claim
arises under Florida’s Workers’ Compensation Law (“FWCL”), Fla. Stat. §§ 440.01-.60.
(Id.).
On the other hand, Defendant asserts remand is not necessary because the extent of
Plaintiff’s claimed injuries are sufficient to satisfy the amount in controversy and Plaintiff’s
claim does not arise under the FWCL. (Doc. 8). Defendant, however, seeks dismissal of
Plaintiff’s complaint, arguing that his claim for negligence does not fall within the narrowly
prescribed exceptions to the FWCL allowing an employee to pursue a common law action
and therefore the workers’ compensation scheme is Plaintiff’s exclusive remedy. (Doc. 3).
Alternatively, Defendant seeks to strike the portions of Plaintiff’s complaint asserting that
Defendant is not entitled to assert certain affirmative defenses and that Plaintiff’s claim is
nonremovable under §1445(c). (Id.).
DISCUSSION
A. Motion to Remand
Plaintiff seeks remand of this action to the Fifth Judicial Circuit in and for Lake
County, Florida, on the basis that (1) Defendant has not established an amount in
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controversy greater than $75,000, and (2) Plaintiff’s claim is nonremovable pursuant to
§ 1445(c).
1. Amount in Controversy
Where the alleged basis for federal jurisdiction is diversity under § 1332, as it is in
this case, the removing defendant has the burden of demonstrating (1) complete diversity
of citizenship and (2) an amount in controversy greater than $75,000. See 28 U.S.C.
§ 1332(a). The parties do not dispute that complete diversity of citizenship exists. Rather,
the issue is whether Defendant has established that the amount in controversy exceeds
$75,000.
When damages are not specified in the state-court complaint, the defendant seeking
removal must prove by a preponderance of the evidence that “the amount in controversy
more likely than not exceeds . . . the jurisdictional requirement.” Roe v. Michelin N. Am.,
Inc., 613 F.3d 1058, 1061 (11th Cir. 2010) (internal quotation marks omitted). However,
a removing defendant is not required “to prove the amount in controversy beyond all doubt
or to banish all uncertainty about it.” Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744,
754 (11th Cir. 2010).
In determining the amount in controversy, the court should first look to the
complaint. Id. If the amount is unascertainable from the complaint, the court can look to
the notice of removal and other “evidence relevant to the amount in controversy at the time
the case was removed,” including evidence submitted in response to the motion to remand.
Williams v. Best Buy Co., 269 F.3d 1316, 1320 (11th Cir. 2001). In Pretka v. Kolter City
Plaza II, Inc., the Eleventh Circuit held that a party seeking to remove a case to federal
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court within the first thirty days after service is not restricted in the types of evidence it
may use to satisfy the jurisdictional requirements for removal. 1 608 F.3d at 770-71. This
evidence may include the removing defendant’s own affidavit, declaration, or other
documentation. Id. at 755. Moreover, district courts are permitted to make “reasonable
deductions” and “reasonable inferences,” and need not “suspend reality or shelve common
sense in determining whether the face of the complaint . . . establishes the jurisdictional
amount.” Id. at 770 (internal quotation marks omitted). “Instead, courts may use their
judicial experience and common sense in determining whether the case stated in a
complaint meets federal jurisdictional requirements.” Roe, 613 F.3d at 1062.
Plaintiff made an unspecified demand for damages; the complaint simply states that
Plaintiff’s damages exceed $15,000. (Doc. 2). But Defendant contends that it is apparent
from the number and type of damages sought by Plaintiff that the amount in controversy is
greater than $75,000. (Doc. 8). Specifically, Plaintiff alleges that he “suffered severe
injuries and other damages as a result of [Defendant’s] negligence . . . , including a left
hallux amputation, and was further injured in about his body and extremities, suffered pain
therefrom, incurred medical expenses in the treatment of the injuries and suffered physical
handicap and his working ability [was] significantly impaired. [He also] . . . suffered
mental anguish, and the loss of capacity for the enjoyment of life. The injuries are either
permanent or continuing in their nature and . . . Plaintiff will suffer the losses and

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Defendant was served with the complaint on September 4, 2015, and filed its notice of
removal on October 5, 2015. (Doc. 1). Thus, Defendant falls within the requisite thirty-day
window and is not restricted in the evidence it may rely upon in proving the jurisdictional amount.
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impairments in the future.” (Doc. 2 at 4). Such allegations, standing alone, would be
insufficient to meet Defendant’s burden. See Williams, 269 F.3d at 1319-21 (concluding
that allegations that the plaintiff tripped on a curb and sustained permanent physical and
mental injuries, incurred substantial medical expenses, suffered lost wages, and
experienced a diminished earnings capacity were insufficient, standing alone, to establish
the amount in controversy by a preponderance of the evidence).
However, in addition to Plaintiff’s allegations, Defendant has also provided trial
verdicts and settlements from cases alleging similar injuries to those sustained by Plaintiff
where the amount in controversy exceeded the jurisdictional threshold. Defendant has
provided three examples of jury verdicts or settlements involving claims of negligence
involving amputation or severe injury to the hallux or big toe and resulting damage awards
greater than $75,000. (Doc. 8, Ex. 1) (listing Florida cases resulting in settlements or jury
verdicts in the amounts of $180,000, $150,000, and $195,286). These settlements and jury
verdicts along with the allegations of Plaintiff’s complaint demonstrate that it is more likely
than not that the amount in controversy exceeds $75,000. See Mullaney v. Endogastric
Solutions, Inc., No. 11-62056-CIV, 2011 WL 4975904, at *2 (S.D. Fla. Oct. 19, 2011)
(relying on jury verdicts and settlements in conjunction with the allegations of the
plaintiff’s complaint in determining that the defendant established the amount in
controversy by a preponderance of evidence). Diversity jurisdiction therefore exists and
Plaintiff is not entitled to remand on this ground.

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2. Workers’ Compensation
Plaintiff contends that even if the Court has subject matter jurisdiction over his
claim, the case should be remanded in accordance with § 1445(c) because Plaintiff’s claim
arises under the FWCL. (Doc. 6 at 4-7). Section 1445(c) provides that a civil action filed
in state court arising under that state’s workmen’s compensation laws is nonremovable.
Although the Eleventh Circuit has not directly addressed the meaning of “arising
under” pursuant to § 1445(c), most courts to have addressed this question have held that
“arising under” in the context of § 1445(c) shares the same definition as “arising under” in
the context of federal question jurisdiction pursuant to 28 U.S.C. § 1331. Jones v. Roadway
Express, Inc., 931 F.2d 1086, 1092 (5th Cir. 1991); Lomeli v. HD Supply, Inc., No. 1507759 SJO (SHx), 2015 WL 6775919, at *4 (C.D. Cal. Nov. 6, 2015) (“Although Congress
did not define what ‘arising under’ means in the Section 1445(c) context, all courts to have
addressed the issue agree that ‘arising under’ in [Section] 1445(c) means the same thing as
it does in 28 U.S.C. § 1331.” (internal quotation marks omitted)). In other words, “arising
under” means the law either creates the cause of action or is a necessary element of the
claim. Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 312 (2005);
Jones, 931 F.2d at 1092; Lomeli, 2015 WL 6775919, at *4.
By his complaint, Plaintiff asserts that he sustained injuries as a result of
Defendant’s negligence. (Doc. 2 at 1-2). Plaintiff contends that his claim “arises under”
Florida Statutes § 440.06 and § 440.11(1). Florida Statute § 440.06 provides:
Every employer who fails to secure the payment of compensation . . . by
failing to meet the requirements of s. 440.38 may not, in any suit brought
against him or her by an employee subject to this chapter to recover damages
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for injury or death, defend such a suit on the grounds that the injury was
caused by the negligence of a fellow servant, that the employee assumed the
risk of his or her employment, or that the injury was due to the comparative
negligence of the employee.
Similarly, Florida Statute § 440.11(1)(a) provides,
The liability of an employer . . . shall be exclusive and in place of all other
liability, including vicarious liability, of such employer to any third-party
tortfeasor and to the employee . . . at law or in admiralty on account of such
injury or death, except . . . [i]f an employer fails to secure payment of
compensation as required by this chapter, an injured employee . . . may elect
to claim compensation under this chapter or to maintain an action at law or
in admiralty for damages on account of such injury or death. In such action
the defendant may not plead as a defense that the injury was caused by
negligence of a fellow employee, that the employee assumed the risk of the
employment, or that the injury was due to the comparative negligence of the
employee.
Plaintiff’s assertion that his claim “arises under” Florida Statutes § 440.06 and
§ 440.11(1) is misplaced. Review of the plain language of these statutes demonstrates that
they do not create Plaintiff’s cause of action. Rather, Florida Statute § 440.06 merely
precludes an employer from asserting certain defenses to an action at law if it fails to secure
payment of compensation as required by the FWCL and an employee is forced to resort to
common law remedies. Likewise, Florida Statute § 440.11(1)(a) provides that the workers’
compensation scheme is the exclusive remedy for an injured employee unless the employer
fails to obtain compensation as required under the FWCL. In the event an employer fails
to obtain the requisite coverage, an employee can institute an action at law and an employer
is precluded from asserting certain defenses. Fla. Stat. § 440.11(1)(a).
On their face, these statutes do not create a cause of action that usurps a traditional
common law action. Nor do these statutes operate as a necessary element to a tort claim
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for negligence. Rather, these statutes merely permit an employee to bring a traditional
common law action in lieu of proceedings under the FWCL and modify the common law
action by depriving an employer of certain defenses for failure to comply with the FWCL.
Accordingly, Plaintiff’s claim is merely one for common law negligence and does not arise
under the FWCL as contemplated by § 1445(c). 2 See Mayes v. Home Depot USA, Inc., No.
4:15-CV-02390, 2015 WL 9319238, at *1-2 (S.D. Tex. Dec. 23, 2015) (finding that an
employee’s tort claim against an employer who failed to comply with a Texas workers’
compensation law similar to that of Florida’s arises under the common law and not under
the workers’ compensation laws); see also Hernandez v. Gregory Land Dev. II, LLC, No.
09-61173-CIV, 2009 WL 3334322, at *1 (S.D. Fla. Oct. 15, 2009) (concluding that the
plaintiff’s negligence claim did not arise under the FWCL). Plaintiff is therefore not
entitled to remand on this ground either.
B. Motion to Dismiss & Request to Strike
Defendant seeks to dismiss Plaintiff’s complaint arguing that the FWCL is
Plaintiff’s exclusive remedy because Plaintiff asserts that his claim is one for workers’
compensation benefits. (Doc. 3 at 4). Alternatively, Defendant seeks to strike paragraphs
7 and 8 of the complaint. (Id.).
1. Motion to Dismiss
The FWCL, Fla. Stat. §§ 440.01-.60, “‘protects workers and compensates them for
injuries in the workplace, without examination of fault in the causation of the injury.’”
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Interestingly, in his response to Defendant’s motion to dismiss, Plaintiff admits that his claim is not a claim
for workers’ compensation benefits, but is instead a common law claim. (Doc. 11 at 4). Although not dispositive of
the issue of whether his claim “arises under” the FWCL, it is nevertheless telling.

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Feraci v. Grundy Marine Constr. Co., 315 F. Supp. 2d 1197, 1204 (N.D. Fla. 2004)
(quoting Gerth v. Wilson, 774 So. 2d 5, 6 (Fla. 2d DCA 2000)). For those who fall within
the statute’s purview, “workers’ compensation is the exclusive remedy for the ‘accidental
injury or death arising out of work performed in the course and the scope of the
employment.’” Turner v. PCR, Inc., 754 So. 2d 683, 686 (Fla. 2000) (quoting Fla. Stat.
§ 440.09(1)). The exclusivity of the FWCL is subject to two narrow exceptions enumerated
by Florida Statute § 440.11(1), which includes the failure to secure compensation as
discussed above. Fla. Stat. § 440.11(1)(a)-(b).
Defendant argues that to the extent Plaintiff’s action arises under the FWCL, his
claim must be pursued under the workers’ compensation scheme, which is Plaintiff’s
exclusive remedy. (Doc. 3 at 4). As discussed with regard to Plaintiff’s motion to remand,
Plaintiff’s claim does not arise under the FWCL. Moreover, Plaintiff concedes that his
claim is an action at law and not an action to recover workers’ compensation benefits.
(Doc. 11 at 4). Defendant’s argument therefore fails in this regard. To the extent that
Defendant contends that it is entitled to workers’ compensation immunity, Defendant’s
argument is premature.
In Florida, an employer can assert the exclusivity of the FWCL, typically referred
to as workers’ compensation immunity, as an affirmative defense. See Roberts v. Cadco
Builders, Inc., 694 So. 2d 845, 846 (Fla. 2d DCA 1997). But “[i]t is the general rule that
workers’ compensation immunity . . . cannot be raised in a motion to dismiss.” Id. (citing
Eiler v. Camp Dresser & McKee, Inc., 542 So. 2d 441 (Fla. 5th DCA 1989); Walker v.
I.T.D. Indus., Inc., 437 So. 2d 230 (Fla. 2d DCA 1983)). Workers’ compensation immunity
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may only be raised on a motion to dismiss if the defense is apparent from the face of the
complaint. Id.
Presently, there is insufficient information available for the Court to determine
whether Defendant is entitled to workers’ compensation immunity. Namely, neither party
has described on what ground Defendant denied Plaintiff workers’ compensation benefits.
See Picon v. Gallagher Bassett Servs., Inc., 548 F. App’x 561, 565-73 (11th Cir. 2013)
(summarizing Florida cases discussing the workers’ compensation immunity defense).
Whether Defendant is entitled to workers’ compensation immunity is a question better left
for resolution on summary judgment since it is not apparent from the face of the complaint
whether the defense applies. Defendant’s argument is therefore premature and dismissal
is not warranted.
2. Request to Strike
Alternatively, Defendant argues that if Plaintiff’s claim for negligence is permitted
to proceed, paragraphs 7 and 8 of the complaint should be stricken. (Doc. 3 at 4).
Paragraph 7 alleges that Defendant is precluded from raising certain affirmative defenses
in accordance with Florida Statutes § 440.06 and § 440.11(1)(a). (Doc. 2 at 2). Paragraph
8 alleges that Plaintiff’s action is nonremovable pursuant to § 1445(c). (Id. at 3).
Pursuant to Federal Rule of Civil Procedure 12(f), a party may move to strike from
a pleading any “redundant, immaterial, impertinent, or scandalous matter.” But striking an
allegation from a pleading is an extreme measure and will rarely be granted. See Thompson
v. Kindred Nursing Ctrs. E., LLC, 211 F. Supp. 2d 1345, 1348 (M.D. Fla. 2002) (“A motion
to strike is a drastic remedy . . . which is disfavored by the courts.” (internal quotation
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marks omitted)). Generally, a motion to strike will “be denied unless the allegations have
no possible relation to the controversy and may cause prejudice to one of the parties.”
Seibel v. Soc’y Lease, Inc., 969 F. Supp. 713, 715 (M.D. Fla. 1997).
As to paragraph 7, Defendant contends that it secured coverage for compensation
as required by the FWCL so the proscription on certain affirmative defenses contained in
Florida Statutes § 440.06 and § 440.11(1)(a) is inapplicable. Florida Statute § 440.38 lists
the permitted ways an employer can secure the payment of compensation as required under
the FWCL. Generally, an employer secures payment of compensation by (1) “insuring and
keeping insured the payment of such compensation with any stock company or mutual
company or association or exchange, authorized to do business in the state,” or (2)
“furnishing satisfactory proof . . . that it has the financial strength necessary to ensure
timely payment of all current and future claims.” Fla. Stat. § 440.38(1)(a)-(b).
Plaintiff admits that his claim is not based upon Defendant’s failure to secure
workers’ compensation coverage. (Doc. 11 at 8). Rather, Plaintiff concedes that his claim
is based on Defendant’s failure to provide workers’ compensation benefits.

(Id.).

Although, it would appear that the prohibitions contained within Florida Statutes § 440.06
and § 440.11(1)(a) would not apply, Defendant is nevertheless free to assert any affirmative
defense it believes is applicable. The allegations of Plaintiff’s complaint are not binding
on Defendant or this Court.

To the extent Defendant believes it may assert these

affirmative defenses, Defendant is free to do so.
Likewise, Plaintiff’s assertion in paragraph 8 that § 1445(c) applies is not binding
upon Defendant or this Court, and Defendant is free to argue otherwise, as demonstrated
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by Defendant’s arguments raised in its response in opposition to Plaintiff’s motion to
remand.
Paragraphs 7 and 8 are not prejudicial to Defendant. Therefore, striking these
paragraphs would serve no legitimate purpose and is unwarranted.
CONCLUSION
Accordingly, it is therefore ORDERED AND ADJUDGED that:
1. Plaintiff’s Motion for Remand (Doc. 6) is DENIED.
2. Defendant’s Motion to Dismiss, or Alternatively, Motion to Strike (Doc. 3) is
DENIED.
3. Within twenty-one (21) days of the date of this Order, Defendant shall answer or
otherwise file a response to Plaintiff’s complaint.
DONE and ORDERED in Tampa, Florida, this 4th day of January, 2016.

Copies furnished to:
Counsel/Parties of Record

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