Candelaria v. Toys 'R' Us - Delaware, Inc.
Filing
15
ORDER: Plaintiff's Motion to Remand (Dkt. 10) is granted. The Clerk of Court is directed to remand this case to the Circuit Court of the Sixth Judicial Circuit, in and for Pasco County, Florida, and provide that court with a copy of this Order. The Clerk of Court is directed to close this case and terminate any pending motions as moot. Signed by Judge James S. Moody, Jr on 2/27/2014. (LN)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JOSE CANDELARIA,
Plaintiff,
v.
Case No. 8:14-cv-136-T-30TBM
TOYS ‘R’ US - DELAWARE, INC.,
Defendant.
_____________________________________/
ORDER
THIS CAUSE comes before the Court upon Plaintiff’s Motion to Remand (Dkt. 10)
and Defendant’s Response in Opposition (Dkt. 13). The Court, having reviewed the motion,
response, and being otherwise advised in the premises, concludes that the motion should be
granted.
BACKGROUND
On December 9, 2013, Plaintiff filed the instant action in state court, alleging
retaliation in violation of the Florida Civil Rights Act. Plaintiff seeks injunctive relief, back
pay, front pay and/or reinstatement, damages related to Plaintiff’s alleged emotional distress,
punitive damages, and attorney’s fees. Plaintiff does not attribute an amount to any of his
damages, or allege any facts that would aid the Court in approximating Plaintiff’s damages,
other than to allege that his damages exceed $15,000.
On December 18, 2013, Defendant was served with the complaint. On January 21,
2014, Defendant removed the state-court action to this Court based on diversity jurisdiction.
Defendant estimates that the amount in controversy exceeds the jurisdictional amount
because Plaintiff appears to request lost wages for over four years, beginning on or about
December 1, 2009, the date Plaintiff’s employment ended. Applying Plaintiff’s most recent
yearly salary of $25,451.40, Defendant calculates approximately $101,805.60 in back pay
damages.
Plaintiff seeks to remand this action. Plaintiff does not contest that the parties are
diverse. Plaintiff argues that Defendant has not demonstrated that Plaintiff’s damages exceed
$75,000. Plaintiff’s motion to remand attaches two declarations: one from Plaintiff’s counsel
and one from Plaintiff. According to Plaintiff’s counsel, Steven G. Wenzel, prior to filing
suit in this case, he made a settlement demand during a telephone conversation with
Defendant’s counsel that was less than half of the $75,000 threshold. According to Wenzel’s
calculations, Plaintiff’s damages “have always been less than $75,000.” (Dkt. 10-1).
Plaintiff’s declaration states that he is seeking “less than $75,000 in damages.” (Dkt.
10-2). Plaintiff also states that after his employment ended with Defendant in 2009, he
worked for three different employers. Plaintiff’s declaration includes his salary for these jobs
and states that, in total, he has earned approximately $74,920 since leaving Defendant’s
employment.
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As discussed below, the Court concludes that Defendant did not establish by a
preponderance of the evidence that the amount in controversy more likely than not exceeds
$75,000.
DISCUSSION
Where the alleged basis for federal jurisdiction is diversity under 28 U.S.C. § 1332,
as it is in this case, the removing defendant has the burden of demonstrating that there is (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 whether complete diversity of citizenship
exists. When, as here, 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) (citation omitted). 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 look first to the complaint.
Id. If the amount is unavailable from the complaint alone, as it is in this case, 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 a motion to
remand. Id. In Pretka, the Eleventh Circuit held that a party seeking to remove a case to
federal court within the first thirty days after service is not restricted in the types of evidence
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it may use to satisfy the jurisdictional requirements for removal. Id. 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 a complaint ... establishes the jurisdictional
amount.” Id. at 770. “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 1062-63.
Applying the guidelines set forth in Roe and Pretka, the Court concludes that
Defendant has not met its burden in establishing by a preponderance of the evidence that the
amount in controversy more likely than not exceeds $75,000. Plaintiff’s motion to remand
and the attached declarations provide concrete evidence that Plaintiff’s damages do not
exceed $75,000. Indeed, the record reflects that: (1) Plaintiff’s counsel’s pre-suit demand
was less than half of $75,000; (2) Plaintiff’s counsel’s declaration states that Plaintiff’s
damages do not exceed $75,000; (3) Plaintiff’s declaration states that Plaintiff’s damages do
not exceed $75,000; and (4) Plaintiff’s declaration disputes Defendant’s back pay
calculation. Notably, Plaintiff’s mitigation evidence shows that Plaintiff’s back pay damages
are approximately $27,000 ($101,805.60 - $74,920.00). Defendant’s response to Plaintiff’s
motion to remand does not dispute this calculation.
Defendant’s response largely argues that Plaintiff’s evidence cannot be considered
post-removal. Defendant is incorrect. The Court may consider evidence that a plaintiff
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attaches to his motion to remand, especially if the evidence refutes a defendant’s calculations.
See Allen v. Novaquest LLC, No. 8:10-cv-1119-T-24EAJ, 2010 WL 2330330, at *1-*2 (M.D.
Fla. June 9, 2010). This includes a plaintiff’s evidence of mitigation efforts. See id.
(granting plaintiff’s motion to remand based on plaintiff’s mitigation evidence that
demonstrated that the amount in controversy was not met).1
Defendant’s remaining arguments regarding Plaintiff’s damages associated with
emotional distress, punitive damages, and attorney’s fees are too nebulous to meet
Defendant’s burden.
In sum, applying judicial experience and common sense, the Court concludes that
Plaintiff’s damages in this case do not exceed $75,000.
It is therefore ORDERED AND ADJUDGED that:
1.
Plaintiff’s Motion to Remand (Dkt. 10) is granted.
2.
The Clerk of Court is directed to remand this case to the Circuit Court of the
Sixth Judicial Circuit, in and for Pasco County, Florida, and provide that court
with a copy of this Order.
1
Defendant is correct, however, that the Court cannot consider Plaintiff’s amended
complaint, filed post-removal, on the amount in controversy. See Leonard v. Enterprise Rent A Car,
279 F.3d 967, 972 (11th Cir. 2002) (the amount in controversy is determined based on the complaint
at the time of removal);Poore v. American-Amicable Life Ins. Co., 218 F.3d 1287, 1291-92 (11th
Cir. 2000) (reversible error to remand based upon a post-removal amended complaint alleging a
reduced amount in controversy).
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3.
The Clerk of Court is directed to close this case and terminate any pending
motions as moot.
DONE and ORDERED in Tampa, Florida on February 27, 2014.
Copies furnished to:
Counsel/Parties of Record
S:\Even\2014\14-cv-136.grantmtremand.wpd
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