Martinez v. The Davey Tree Expert Company

Filing 22

ORDER: Plaintiff's Motion to Remand 3 is GRANTED. The Clerk is directed to REMAND this case to the Circuit Court in and for Hillsborough County, Florida. Thereafter, the Clerk shall close the case. Plaintiff's Motion to Strike 12 is DENIED. Signed by Judge Virginia M. Hernandez Covington on 8/26/2011. (CAC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CANDIDO MARTINEZ,
Plaintiff,
Case No. 8:11-cv-873-T-33EAJ
THE DAVEY TREE EXPERT CO.,
Defendant.
/

ORDER
This cause is before the Court pursuant to Plaintiff’s
Motion to Remand (Doc. # 3), filed on April 25, 2011. On May
9, 2011, Defendant filed a response in opposition to the
motion. (Doc. # 11). Also before this Court is Plaintiff’s
Motion to Strike (Doc. # 12), filed on May 11, 2011. Defendant
filed its response in opposition to that motion (Doc. # 15) on
May 25, 2011. For the reasons that follow, the Motion to
Remand is granted and the Motion to Strike is denied.
I.

Background
Plaintiff Candido Martinez filed suit in the Circuit

Court for Hillsborough County, Florida, on March 29, 2011,
alleging age discrimination in violation of the Florida Civil
Rights Act (“FCRA”), Fla. Stat § 760.01, et seq. Martinez
seeks damages in excess of $15,000 in the form of lost wages,
benefits

and

other

remuneration;

compensatory

damages,

including emotional distress, allowable by law; and punitive

damages. He also seeks injunctive relief, reinstatement to the
position he held before termination, and reasonable attorney’s
fees and costs.
On April 21, 2011, Defendant The Davey Tree Expert Co.
removed this action to federal court. (Doc. # 1). In its
Notice of Removal, Davey contends that Martinez would not
stipulate that the total amount in controversy is less than
the $75,000 jurisdictional minimum. (Id. at ¶ 3). Davey
asserts that while economic damages are less than $75,000,
damages for emotional distress, compensatory damages and
punitive damages could cause the amount in controversy to
exceed $75,000. Davey bases this assertion upon jury awards in
other cases within the geographic area of the Middle District
of Florida. (Id. at ¶ 4).
Martinez filed his Motion to Remand on April 25, 2011.
(Doc. # 3). Martinez contends that Davey has failed to
establish by a preponderance of the evidence that the amount
in controversy exceeds $75,000. (Id. at 1). Specifically,
Martinez argues that his Complaint merely alleges damages in
excess of the $15,000 jurisdictional limit of the state court,
and that Davey did not base its removal on any documentary
evidence Martinez provided. (Id. at 3). Further, Martinez

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argues that Davey may not base removal on compensatory and
punitive damages because they are speculative. (Id.).
In its response to the Motion, Davey reasserts that jury
awards in similar cases demonstrate that compensatory and
punitive damages will exceed $75,000, compounded by the fact
that Martinez refused to stipulate that damages did not exceed
the jurisdictional amount. (Doc. # 11 at 3-4). Furthermore,
Davey argues that lost wages should be calculated from the
time of discharge up through the date of trial, and would thus
total $48,474 in this case. (Id. at 5). As such, Davey
contends, Martinez’s “demands for emotional distress and
punitive damages need only be roughly $12,500 each in order to
meet the $75,000 jurisdictional threshold.” (Id.)
Davey bases its lost wages calculation on Martinez’s
purported

annual

salary

of

$21,361.60

as

stated

in

the

Affidavit of Susan E. Straub attached as Exhibit 1 to Davey’s
response.

(Id.

at

11).

That

affidavit

is

the

focus

of

Martinez’s Motion to Strike, filed on May 11, 2011. (Doc. #
12). Martinez asserts that the affidavit should be stricken,
pursuant to Federal Rule of Civil Procedure 12(f), because it
was not part of Davey’s initial removal papers. (Id. at 2).
Davey counters that Rule 12(f) applies only to pleadings.
(Doc. # 15 at 2).
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II.

Motion to Remand
A defendant may remove a case filed in state court to

federal court if “the district courts of the United States
have original jurisdiction.” Pease v. Medtronic, Inc., 6 F.
Supp. 2d 1354, 1356 (S.D. Fla. 1998) (citing 28 U.S.C. §
1441(a)). Original jurisdiction may be established if there is
complete diversity of citizenship among the parties and the
amount in controversy exceeds $75,000. Id. (citing 28 U.S.C.
§ 1332(a)(1)). In removal cases, the burden of proving any
jurisdictional fact rests upon the defendant. Id.
Because removal is a statutory right it “should be
construed strictly in favor of state court jurisdiction.”
Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09
(1941); see also Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d
405, 411 (11th Cir. 1999); Pacheco de Perez v. AT&T Co., 139
F.3d 1368, 1373 (11th Cir. 1998). “[W]here plaintiff and
defendant clash about jurisdiction, uncertainties are resolved
in favor of remand.” Burns v. Windsor Ins. Co., 31 F.3d 1092,
1095 (11th Cir. 1994). A defendant’s burden of proof is
therefore a heavy one. Id.
In determining whether the jurisdictional minimum has
been met, the court must review the amount in controversy at
the time of removal. Pease, 6 F. Supp. 2d at 1356. “Where, as
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here, the plaintiff has not pled a specific amount of damages,
the removing defendant must prove by a preponderance of the
evidence

that

the

amount

in

controversy

exceeds

the

jurisdictional requirement.” Williams v. Best Buy Co., Inc.,
269 F.3d 1316, 1319 (11th Cir. 2001)). “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.” Id.
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). Factual allegations
supported

by

deductions,

evidence
reasonable

extrapolations.”

Id.

can

be

“combined

inferences,
“The

or

with

reasonable

other

reasonable

substantive

jurisdictional

requirements of removal do not limit the types of evidence
that may be used to satisfy the preponderance of the evidence
standard. Defendants may introduce their own affidavits,
declarations, or other documents.” Id. at 755. Furthermore,
“courts may use their judicial experience and common sense in
determining whether the case stated in a complaint meets

5

federal jurisdictional requirements.” Roe v. Michelin N. Am.,
Inc., 613 F.3d 1058, 1062 (11th Cir. 2010).
The Straub affidavit states that Davey paid Martinez a
rate of $10.27 per hour. (Doc. # 11 at 11). Davey contends
that his lost wages should be calculated from the date of
termination through the date of trial, relying for support
upon Hendry v. Tampa Ship, LLC, No. 8:10-cv-1849-T-30TGW, 2011
WL 398042 (M.D. Fla. Feb. 4, 2011). Assuming an April 21,
2012, trial date, that results in a lost wage claim of
approximately $48,474, according to Davey. (Doc. # 11 at 5).
Although that figure is well below $75,000, Davey asserts
that compensatory and punitive damages will easily bring the
amount in controversy over the jurisdictional minimum. (Id.).
In support, Davey cites three age discrimination cases decided
in state courts within this Court’s geography. (Id. at 3-4).
In each of these cases, the jury awarded the plaintiff damages
for emotional distress that met or exceeded the $75,000
minimum. (Id.). Davey further asserts that Martinez’s refusal
to stipulate as to damages and his prayer for attorney’s fees
adds weight to the argument that the amount in controversy
requirement has been met. (Id. at 4-5).
Martinez contends that compensatory and punitive damages
are too speculative to serve as a basis for removal. (Doc. #
6

3 at 3). In support, Martinez relies upon a number of cases
from the Middle District of Florida as well as Lowery v.
Alabama Power Co., 483 F.3d 1184 (11th Cir. 2007) – which,
prior to Pretka, frequently served as the basis for the remand
analysis. Davey rightly explains that Pretka “provided a
thorough

explanation

clarifying

the

types

and

pointed

of

evidence

criticism
and

of

Lowery,”

inferences

that

a

District Court may apply. (Doc. # 11 at 7). Davey further
contends that Roe rejects the notion that non-economic damages
are speculative; indeed, the Roe court denied remand based
solely upon punitive damages. (Id. at 7-8).
Still,

a

defendant

must

prove

that

the

amount

in

controversy “more likely than not” exceeds $75,000. Roe, 613
F.3d at 1061. Accepting Davey’s estimation of economic damages
in this matter, a minimum of approximately $26,526 in noneconomic damages would be required to reach $75,000. The
Florida District Court of Appeal for the Second District
recently stated that “in a ‘typical’ age discrimination case,
where a plaintiff experiences no physical injury and presents
no medical or psychological evidence of emotional pain and
suffering, non-economic damages should not exceed the $5,000
to $30,000 range.” Ernie Haire Ford, Inc. v. Atkinson, 64 So.
3d 131, 132 (Fla. 2d DCA 2011). Nothing in the record suggests
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that this is an atypical case. Thus, the minimum amount of
non-economic

damages

needed

to

reach

the

jurisdictional

threshold is in the upper end of the spectrum of awards. The
fact that Martinez has not stipulated as to damages below the
jurisdictional amount deserve some weight but it is not
dispositive.1 Alshakanbeh v. Food Lion, LLC, No. 3:06-cv-1094J-12HTS, 2007 WL 917354 at *2 (M.D. Fla. Mar. 23, 2007).
Exercising its judicial experience and common sense, and
resolving all uncertainties in favor of remand, the Court
finds that Davey has not met its burden of establishing that
the amount in controversy exceeds the jurisdictional minimum.
Therefore, the Court grants the Motion to Remand.
III. Motion to Strike
Federal Rule of Civil Procedure 12(f), provides that upon
motion by a party or upon the court’s initiative, “the court
may order stricken from any pleading any insufficient defense
or any redundant, immaterial, impertinent, or scandalous
matter.” Martinez asserts that the Affidavit of Susan E.
Straub should be stricken because it was not part of Davey’s

1

Court costs cannot be added into the amount in
controversy and, under FCRA, attorney’s fees are awarded as
part of those costs. Fusco v. Victoria’s Secret Stores, LLC,
No. 6:11-cv-989-Orl-22DAB, Dkt. 17 at 8 n.2 (M.D. Fla. Aug.
18, 2011) (citing Fla. Stat. § 760.11). Thus, Martinez’s
prayer for attorney’s fees is not included in this calculus.
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initial removal papers. (Doc. # 12 at 2). However, “motions to
strike

are

only

appropriately

addressed

towards

matters

contained in the pleadings.” Polite v. Dougherty Co. Sch.
Sys., 314 Fed. Appx. 180, 184 n.7 (11th Cir. 2008). Here, the
Straub

affidavit

was

submitted

with

Davey’s

response

to

Martinez’s Motion to Remand, not in a pleading. Therefore, the
Court denies the Motion to Strike.
Accordingly, it is now
ORDERED, ADJUDGED and DECREED:
(1)

Plaintiff’s Motion to Remand (Doc. # 3) is GRANTED.

(2)

The Clerk is directed to REMAND this case to the Circuit
Court

in

and

for

Hillsborough

County,

Florida.

Thereafter, the Clerk shall close the case.
(3)

Plaintiff’s Motion to Strike (Doc. # 12) is DENIED.
DONE and ORDERED in Chambers, in Tampa, Florida, this

26th day of August 2011.

Copies to:
All Counsel of Record

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