Brooks v. Sears, Roebuck and Co.

Filing 20

ORDER adopting 15 REPORT AND RECOMMENDATIONS re 2 Complaint filed by Thomas H. Brooks, Jr. This case is REMANDED to the Circuit Court for the Eighteenth Judicial Circuit in and for Seminole County, Florida. The Clerk is DIRECTED to close the file. Signed by Judge Roy B. Dalton, Jr. on 7/23/2018. (ctp)(JLC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
THOMAS H. BROOKS, JR.,
Plaintiff,
v.

Case No. 6:18-cv-554-Orl-37DCI

SEARS, ROEBUCK AND CO.,
Defendant.
_____________________________________
ORDER
This cause comes before the Court for review of U.S. Magistrate Judge Daniel C.
Irick’s Report, recommending that the Court remand this case for lack of subject matter
jurisdiction. (Doc. 15 (“R&R”).) Defendant objects. (Doc. 19.) On de novo review, the
Court finds that the R&R is due to be adopted and this case remanded.
I.

PROCEDURAL HISTORY

Plaintiff initiated this premise liability action in state court. (Doc. 2
(“Complaint”).) Purporting to invoke the Court’s diversity jurisdiction, Defendant
removed the action here. (Doc. 1 (“Notice”).) On sua sponte review, Magistrate Judge Irick
found that Defendant failed to establish the requirements for diversity jurisdiction and
directed Defendant to show cause why this cause should not be remanded for lack of
subject matter jurisdiction. (Doc. 7 (“Show Cause Order”).) Specifically, Magistrate Judge
Irick found deficient Defendant’s: (1) allegation concerning Plaintiff’s citizenship, which
improperly relied on the Complaint’s residency allegation; and (2) sole reliance on
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Plaintiff’s $135,000 settlement proposal (“Settlement Proposal”) to establish that the
amount in controversy exceeded the jurisdictional threshold. (Id. at 2–3.)
In response, Defendant chose not to submit additional evidence to support the
existence of subject matter jurisdiction; instead, it stood on the strength of the allegations
in its Notice and the Settlement Proposal. (See Doc. 10.) With respect to the complete
diversity requirement, Defendant argued that Plaintiff’s residence is prima facie evidence
that Plaintiff is a Florida domiciliary and therefore he is a Florida citizen. (Id. at 7–8.) As
for the amount in controversy requirement, Defendant argued that the Show Cause
Order failed to appreciate the distinction between the Settlement Proposal, which courts
have held to satisfy the amount in controversy, and informal settlement demands. (Id. at
4–6.)
Finding Defendant’s arguments unpersuasive, Magistrate Judge Irick issued his
R&R concluding that Defendant had failed to carry its burden of proving the existence of
complete diversity or the requisite amount in controversy. (See Doc. 15, pp. 7–9.)
Defendant objected (Doc. 19), and the matter is now ripe.
II.

LEGAL STANDARDS

When a party objects to a magistrate judge’s findings, the district court must
“make a de novo determination of those portions of the report . . . to which objection is
made.” 28 U.S.C. § 636(b)(1). The district court “may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the magistrate judge.” Id. The
district court must consider the record and factual issues based on the record
independent of the magistrate judge’s report. Ernest S. ex rel. Jeffrey S. v. State Bd. of Educ.,
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896 F.2d 507, 513 (11th Cir. 1990).
III.

ANALYSIS

Federal courts are courts of limited jurisdiction. To guard against unwarranted
expansion of this jurisdiction in diversity cases, the parties must be completely diverse
and the amount in controversy must exceed $75,000. 28 U.S.C. § 1332(a). In the removal
context, the defendant bears the burden of proving by a preponderance of the evidence
that jurisdiction exists. Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir. 2001).
A.

Diversity of Citizenship.
Defendant argues that the R&R erroneously concluded that it did not sufficiently

allege complete diversity. (Doc. 19, pp. 9–10.) Reiterating its position that residency is
prima facie evidence of domicile, which equates to citizenship, Defendant submits the
Notice sufficiently alleged Plaintiff’s Florida citizenship. (Id. at 10.) Defendant is wrong.
Residence alone is insufficient to demonstrate a person’s citizenship for purposes of
diversity jurisdiction. Travaglio v. Am. Express Co., 735 F.3d 1266, 1269 (11th Cir. 2013); see
also Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994) (“Citizenship, not residence, is
the key fact that must be alleged in the complaint to establish diversity for a natural
person.”). As Defendant provided no other evidence to support Plaintiff’s citizenship, it
has failed to establish complete diversity.
Although Defendant disingenuously suggests that Plaintiff’s refusal to respond to
its discovery requests prevented it from suppling additional information (Doc. 19, p. 4
n.1), the Court finds this argument unavailing. Defendant, not Plaintiff, bears the burden
of establishing the parties’ citizenship. See Rolling Greens MHP, L.P. v. Comast SCH
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Holdings LLC, 374 F.3d 1020, 1022 (11th Cir. 2004). Surely public records exist that could
have supported Defendant’s domicile contention, had it cared to search. See, e.g., Akkan
v. Nationstar Mortg. LLC, No. 1:16-cv-1999-WSD-LTW, 2016 WL 11260335, at *1
(N.D. Ga. Nov. 16, 2016) (setting forth the factors a court considers in making a domicile
determination including, property records, voter registration, employment records, and
vehicle registration).
B.

Amount in Controversy
As it did in its response to the Show Cause Order, Defendant objects to the R&R’s

contrary conclusion by urging the Court to find that the Settlement Proposal sufficiently
establishes the requisite amount in controversy. (Doc. 19, pp. 5–9.) This argument is no
more persuasive as an objection to the R&R than it was in response to the Show Cause
Order.
Settlement offers are not conclusive proof of the amount in controversy; rather,
courts consider the circumstances under which they are made, including the specificity
of information provided in the offer. 1 See Alilin v. State Farm Mut. Auto. Ins. Co.,
No. 6:14-cv-1183-Orl-41DAB, 2014 WL 7734262, at *2 (M.D. Fla. Jan. 30, 2014). Here,
Defendant offers the Settlement Proposal as the sole evidence of the amount in
controversy. (See Doc. 19, pp. 5–9.) But it lacks specific information to suggest that
$135,000 is a reasonable assessment of Plaintiff’s claim. (See Doc. 1-2, p. 1.) And Defendant

Although Defendant peddles the same authority presented in response to the
Show Cause Order (Doc. 19, pp. 5–7; see also Doc. 10, pp. 5–6), as Magistrate Judge Irick
correctly points out, those cases are inapposite (see Doc. 15, pp. 5–7).
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provides no details concerning the nature and severity of Plaintiff’s injuries which would
allow the Court to determine the reasonableness of the proposal. With this, the Settlement
Proposal—standing alone—is insufficient to establish the amount in controversy. See, e.g.,
Jackson v. Select Portfolio Servicing, Inc., 651 F. Supp. 2d 1279, 1281 (S.D. Ala. 2009) (finding
a post-suit settlement offer making a flat claim for $155,000 with no information about
how the damages were assessed failed to establish the amount in controversy). So
Defendant has failed to carry its burden on this requirement.
Failing to establish diversity jurisdiction, Defendant has failed to demonstrate
subject matter jurisdiction. See Williams, 269 F.3d at 1319. Thus, this case is due to be
remanded. See 28 U.S.C. § 1447(c) (providing that a district court must remand a case
when it lacks subject matter jurisdiction).
IV.

CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows:
1.

Defendant’s Objection (Doc. 19) is OVERRULED.

2.

U.S. Magistrate Judge Daniel C. Irick’s Report and Recommendation
(Doc. 15) is ADOPTED, CONFIRMED, and made a part of this Order.

3.

This case is REMANDED to the Circuit Court for the Eighteenth Judicial
Circuit in and for Seminole County, Florida.

4.

The Clerk is DIRECTED to close the file.

DONE AND ORDERED in Chambers in Orlando, Florida, on July 23, 2018.

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Copies to:
Counsel of Record
The Circuit Court for the Eighteenth Judicial Circuit
in and for Seminole County, Florida

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