Level 3 Communications, LLC v. Salser Construction, Inc.
Filing
23
ORDER denying 9 Defendant's Motion to Dismiss Plaintiff's Complaint. Signed by Judge James S. Moody, Jr. on 7/10/2017. (LN)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
LEVEL 3 COMMUNICATIONS, LLC,
Plaintiff,
v.
Case No: 5:17-cv-143-Oc-30PRL
SALSER CONSTRUCTION, INC.,
Defendant.
ORDER
During an excavation in 2013, Salser Construction, Inc., damaged a fiber-optic cable
owned by Level 3 Communications, LLC, and Level 3 sued Salser in this Court. Salser
moves to dismiss for lack of subject-matter jurisdiction, alleging Level 3’s damages,
excluding unrecoverable loss-of-use damages, do not exceed $75,000. Because the
recoverable damages exceed $75,000, the Court concludes the Motion should be denied.
BACKGROUND
Salser damaged a fiber-optic cable owned by Level 3 in July 2013. Level 3 sent
Salser a $20,596.73 repair invoice two months later. Level 3 later sent a letter to Salser
demanding payment of the $20,596.73 invoice.
On April 6, 2017, Level 3 sued Salser for trespass and negligence related to the
damaged cable in federal court based on diversity of citizenship. The Complaint alleges
Level 3’s damages exceed $75,000, including loss-of-use damages. According to Level 3’s
response to Salser’s Motion, the loss-of-use damages total $82,577.50.
Salser now moves the Court to dismiss the Complaint for lack of subject-matter
jurisdiction, arguing that Level 3’s damages do not exceed $75,000. While Salser disputes
that Level 3 would even be entitled to recover the full $20,596.73 price of its invoice, Salser
argues Level 3 is in no way entitled to recover loss-of-use damages.
MOTION TO DISMISS STANDARD
Federal Rule of Civil Procedure 12(b)(6) allows a complaint to be dismissed for
failure to state a claim on which relief can be granted. When reviewing a motion to dismiss,
courts must limit their consideration to the well-pleaded allegations, documents central to
or referred to in the complaint, and matters judicially noticed. See La Grasta v. First Union
Securities, Inc., 358 F.3d 840, 845 (11th Cir. 2004) (internal citations omitted); Day v.
Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005). Courts must accept all factual allegations
contained in the complaint as true, and view the facts in a light most favorable to the
plaintiff. See Erickson, 551 U.S. at 93–94.
Legal conclusions, however, “are not entitled to the assumption of truth.” Ashcroft
v. Iqbal, 556 U.S. 662, 664 (2009). In fact, “conclusory allegations, unwarranted factual
deductions or legal conclusions masquerading as facts will not prevent dismissal.” Davila
v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003). To survive a motion to
dismiss, a complaint must instead contain sufficient factual matter, accepted as true, to
“state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (internal
quotation marks and citations omitted). This plausibility standard is met when the plaintiff
pleads enough factual content to allow the court “to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. (internal citations omitted).
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DISCUSSION
Whether this Court has subject-matter jurisdiction depends on whether Level 3 is
barred from recovering loss-of-use damages. 1 Because the Court concludes Level 3 is not
barred from seeking loss-of-use damages, this Court has jurisdiction and Salser’s Motion
should be denied.
“Federal courts are courts of limited jurisdiction.” Burns v. Windsor Ins., Co., 31
F.3d 1092, 1095 (11th Cir. 1994). To invoke a court’s diversity jurisdiction, a plaintiff must
claim that the amount in controversy exceeds $75,000. 28 U.S.C. § 1332. Generally, “[i]t
must appear to a legal certainty that the claim is really for less than the jurisdictional
amount to justify dismissal.” St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283,
289, 58 S. Ct. 586, 590, 82 L. Ed. 845 (1938). Here, Level 3 claims it has loss-of-use
damages totaling $82,577.50, and repair costs of $20,596.73. (Doc. 22, ¶ 4). So if Level 3
cannot recover loss-of-use damages, it would appear to a legal certainty that the amount in
controversy does not exceed $75,000.
Salser claims that loss-of-use damages are not recoverable based on MCI WorldCom
Network Services, Inc. v. Mastec, Inc., 995 So. 2d 221, 229 (Fla. 2008); and MCI
WorldCom Network Services, Inc. v. Mastec, Inc., 544 F.3d 1200, 1201 (11th Cir. 2008)
(collectively, the “MCI Cases”). But as Level 3 notes, Salser reads the MCI Cases too
broadly.
1
Because the loss-of-use damages claimed by Level 3 is dispositive of whether its claim
satisfies the amount in controversy requirement, the Court declines at this time to address whether
Level 3’s claims for corporate overhead expenses and claims processing expenses are recoverable.
3
In the MCI Cases, MCI sought loss-of-use damages against Mastec when Mastec
damaged one of MCI’s underground fiber-optic cables. 995 So. 2d at 222–23. But MCI did
not suffer a disruption in its service because it was able to redirect telecommunications
traffic to other cables in its system. Id. The Florida Supreme Court, while answering a
certified question from the Eleventh Circuit Court of Appeals, held that MCI could not
recover loss-of-use damages because there was no actual loss of use or rental of
replacement cable, nor interruption of service to MCI’s customers. Id. at 229
The facts alleged by Level 3 in the Complaint are distinguishable from the MCI
Cases. Unlike MCI, Level 3 alleges it lost the ability to provide services to numerous
customers (Doc. 1, ¶¶ 9, 19, and 28). So Level 3 is alleging that it suffered actual damages
for loss of use, as opposed to the theoretical damages claimed by MCI. If proven by Level
3, the Court concludes loss-of-use damages would be recoverable in this case. As such, the
Court cannot say that it is a legal certainty that the amount in controversy is below the
jurisdictional minimum and concludes Salser’s Motion should be denied.
Accordingly, it is ORDERED AND ADJUDGED that:
1.
Defendant’s Motion to Dismiss Plaintiff’s Complaint (Doc. 9) is DENIED.
DONE and ORDERED in Tampa, Florida, this 10th day of July, 2017.
Copies furnished to:
Counsel/Parties of Record
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