Olivo v. Big Lots Stores, Inc.

Filing 22

ORDER adopting 17 Report and Recommendation of the Magistrate Judge. Plaintiff's Motion for Remand 8 is GRANTED. This case is REMANDED to the Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida. Plaintiff' s request for attorneys' fees is DENIED. Defendant's Motion to Compel 21 is DENIED as moot. The Clerk is directed to transmit a certified copy of this Order to the Clerk of the Circuit Court in and for Orange County, Florida. The Clerk is further directed to terminate all previously scheduled deadlines and CLOSE this case. Signed by Judge Charlene Edwards Honeywell on 2/14/2013. (BGS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
LADY OLIVO,
Plaintiff,
v.

Case No: 6:12-cv-1772-Orl-36TBS

BIG LOTS STORES, INC.,
Defendant.
___________________________________
ORDER
This cause comes before the Court on the Report and Recommendation of Magistrate
Judge Thomas B. Smith, filed on December 27, 2012 (Doc. 17).

In the Report and

Recommendation, Magistrate Judge Smith recommends that Plaintiff Lady Olivo’s (“Plaintiff”)
Motion to Remand (Doc. 8) be granted. See Doc. 17. On January 10, 2013, Defendant Big Lots
Stores, Inc. (“Defendant”) filed an Objection to the Report and Recommendation (Doc. 18), to
which Plaintiff responded (Doc. 19). As such, this matter is ripe for review.
I.

BACKGROUND
This action arises from injuries Plaintiff allegedly suffered as a result of a “slip-and-fall”

at Defendant’s store in Orlando, Florida on December 3, 2010. Doc. 2, ¶¶ 4–9. On October 10,
2012, Plaintiff filed a Complaint against Defendant in the Circuit Court of the Ninth Judicial
Circuit in and for Orange County, Florida, asserting a claim for negligence (the “Complaint”).
Doc. 2. On November 23, 2012, Defendant filed a timely Notice of Removal (Doc. 1) in this
Court, pursuant to 28 U.S.C. §§ 1441 and 1446, asserting that the Court has diversity jurisdiction

under 28 U.S.C. § 1332(a).1 On November 29, 2012, Plaintiff filed a Motion to Remand to State
Court (“Motion to Remand”) (Doc. 8), arguing that the amount in controversy requirement of 28
U.S.C. § 1332(a) had not been met. On December 27, 2012, Magistrate Judge Smith issued a
Report and Recommendation recommending that Plaintiff’s Motion to Remand be granted. Doc.
17.
II.

STANDARD OF REVIEW
When a party makes a timely and specific objection to a Magistrate Judge’s Report and

Recommendation, the district judge “shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is made.” 28
U.S.C. § 636(b)(1)(C); U.S. v. Raddatz, 447 U.S. 667, 673 (1980). The district judge may
accept, reject, or modify in whole or in part, the Report and Recommendation of the Magistrate
Judge. Fed. R. Civ. P. 72. The district judge may also receive further evidence or recommit the
matter to the Magistrate Judge with further instructions. Id.
A defendant may remove a civil action from state court to the district court of the United
States for the district and division within which such action is pending, provided that the district
court has jurisdiction. 28 U.S.C. § 1441(a). Diversity jurisdiction exists where the suit is
between citizens of different states and the amount in controversy exceeds $75,000. 28 U.S.C. §
1332(a). The party seeking removal bears the burden of proving proper federal jurisdiction.
Leonard v. Enter. Rent a Car, 279 F.3d 967, 972 (11th Cir. 2002). “Where a plaintiff fails to
specify the total amount of damages demanded . . . a defendant seeking removal based on
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The timeliness of the removal is not in dispute. Pursuant to 28 U.S.C. § 1446(b), Defendant
was required to file its Notice of Removal “within 30 days after the receipt by the [D]efendant,
through service or otherwise, of a copy of the initial pleading setting forth the claim for relief
upon which such action or proceeding is based . . . .” Defendant was served with process on
October 26, 2012 (Doc. 3) and filed the Notice of Removal on November 23, 2012 (Doc. 1),
which was within the statutory timeframe.

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diversity jurisdiction must prove by a preponderance of the evidence that the amount in
controversy exceeds the $75,000 jurisdictional requirement.” Id. “To determine whether this
standard is met, a court first examines whether it is facially apparent from the complaint that the
amount in controversy exceeds the jurisdictional requirement. . . . If the jurisdictional amount is
not facially apparent from the complaint, the court should look to the notice of removal and may
require evidence relevant to the amount in controversy at the time the case was removed.”
Miedema v. Maytag Corp., 450 F.3d 1322, 1330 (11th Cir. 2006) (internal citations and
quotations omitted). In assessing whether removal is proper, the Court may consider “only the
limited universe of evidence available when the motion to remand is filed—i.e., the notice of
removal and accompanying documents. If that evidence is insufficient to establish that removal
was proper or that jurisdiction was present, neither the defendant[ ] nor the court may speculate
in an attempt to make up for the notice’s failings.” Lowery v. Ala. Power Co., 483 F.3d 1184,
1214–15 (11th Cir. 2007). “[R]emoval statutes are construed narrowly; where plaintiff and
defendant clash about jurisdiction, uncertainties are resolved in favor of remand.” Williams v.
AFC Enterprises, Inc., 389 F.3d 1185, 1189 (11th Cir. 2004) (quotations omitted).
III.

DISCUSSION
Defendant’s sole objection to the Report and Recommendation is that the Magistrate

Judge erred in concluding that Defendant failed to prove by a preponderance of the evidence that
the amount in controversy exceeds $75,000.2 Defendant argues, as it did before the Magistrate
Judge, that Plaintiff’s pre-suit settlement demand letter (the “Demand Letter”) (Doc. 1-1, pp. 4–

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It is undisputed that there is complete diversity between the parties, as Plaintiff is a citizen of
Florida, and Defendant is an Ohio corporation with its principal place of business in Ohio and,
therefore, a citizen of Ohio. Doc. 1, ¶¶ 4, 5; Doc. 8, p. 4.

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8), in which Plaintiff demanded $295,000 from Defendant to settle her slip-and-fall claim,
establishes that the amount in controversy exceeds $75,000.
It is undisputed that the amount in controversy is not facially apparent from the
Complaint. The Complaint merely contains the standard jurisdictional language for the Florida
state circuit court asserting damages “in excess of Fifteen Thousand Dollars ($15,000), plus
interest and costs[.]”3 Doc. 2, p. 4. Thus, the Court must look to the other removal documents.
Miedema, 450 F.3d at 1330. Defendant directs the Court to the Demand Letter tendered by
Plaintiff on or around December 7, 2011, prior to the commencement of this action in state court.
See Doc. 1-1, pp. 4–8. Because the Demand Letter was filed contemporaneously with the Notice
of Removal, the Court may consider it in determining whether the amount in controversy
exceeds $75,000. See Lowery, 483 F.3d at 1214–15.
The Demand Letter states that Plaintiff was treated in the emergency room of a local
hospital following her fall after complaining of back pain. Id. at 4. According to the Demand
Letter, Plaintiff continued to suffer chronic back pain and underwent several medical treatments,
in which she was diagnosed with a cervical strain, left knee pain, lumbar strain, lumbar
radiculopathy, and several herniations with tearing. Id. at 4–5. Attached to the Demand Letter is
an exhibit called “Special Damages,” which itemizes the cost of these treatments and specifies a
total cost of $45,469.19. Id. at 7–8. The Demand Letter further asserts, under the caption
“Future Medical Treatment,” that Plaintiff is undergoing strengthening exercises and that she has
been advised by a neurological surgeon that she will require “a multilevel reconstruction of her
lumbar spine.” Id. at 5. The Demand Letter states that a “reasonable settlement value for
3

In Florida, pleading an amount in controversy in excess of $15,000 is necessary to invoke the
jurisdiction of the circuit courts rather than the county courts. See Fla. Stat. Ann. § 26.012(2)(a)
(West 2012); Fla. Stat. Ann. § 34.01(1)(c) (West 2012); Haueter-Herranz v. Romero, 975 So. 2d
511, 514 (2d Fla. Dist. Ct. App. 2008).

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[Plaintiff’s] claim for bodily injuries, impairments, damages, and losses is well in excess of
$295,000.00, for which [Plaintiff] hereby make[s] demand.” Id. at 6.
Defendant argues that the Demand Letter establishes that the amount in controversy
exceeds $75,000. However, the Magistrate Judge has already considered and rejected this
argument, and the Court sees no reason to diverge from the Report and Recommendation.
“Settlement offers do not automatically establish the amount in controversy for purposes of
diversity jurisdiction.

Instead courts have analyzed whether demand letters merely reflect

puffing and posturing, or whether they provide specific information to support the plaintiff’s
claim for damages and thus offer a reasonable assessment of the value to the claim.” Lamb v.
State Farm Fire Mut. Auto. Ins. Co., No. 3:10-cv-615, 2010 WL 6790539, at *2 (M.D. Fla. Nov.
5, 2010) (quotations omitted); accord Diaz v. Big Lots Stores, Inc., No. 5:10-cv-319, 2010 WL
6793850, at *2 (M.D. Fla. Nov. 5, 2010).

Here, Plaintiff’s Demand Letter reflects mere

posturing rather than a reasonable assessment of the value of her claim. The Demand Letter
specifies medical expenses totaling $45,469.19, but it does not provide specific estimates for any
other damages and does not explain how Plaintiff arrives at the $295,000 demand. Accordingly,
it is entitled to little weight in determining whether the amount in controversy exceeds $75,000.
See Diaz, 2010 WL 6793850, at *2 (“Settlement offers commonly reflect puffing and posturing,
and such a settlement offer is entitled to little weight in measuring the preponderance of the
evidence.”).
As there is no other basis for the Court to conclude that the amount in controversy
exceeds $75,000, and in light of the fact that removal jurisdiction should be strictly construed
and uncertainties resolved in favor of remand, the Court agrees with the Magistrate Judge that
Defendant has failed to establish by a preponderance of the evidence that the amount in

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controversy exceeds the jurisdictional requirement. Therefore, Plaintiff’s Motion for Remand
will be granted.
Accordingly, it is hereby ORDERED and ADJUDGED:
1.

The Report and Recommendation of the Magistrate Judge (Doc. 17) is adopted,
confirmed, and approved in all respects and is made a part of this Order for all
purposes, including appellate review.

2.

Plaintiff’s Motion for Remand (Doc. 8) is GRANTED.

3.

This case is REMANDED to the Circuit Court of the Ninth Judicial Circuit in
and for Orange County, Florida.

4.

Plaintiff’s request for attorneys’ fees is DENIED.

5.

Defendant’s Motion to Compel (Doc. 21) is DENIED as moot.

6.

The Clerk is directed to transmit a certified copy of this Order to the Clerk of the
Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida. The
Clerk is further directed to CLOSE this case and terminate all previously
scheduled deadlines.

DONE and ORDERED in Orlando, Florida on February 14, 2013.

Copies furnished to:
Counsel of Record
Unrepresented Parties
United States Magistrate Judge Thomas B. Smith

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