Barrow v. Dolgencorp, LLC.

Filing 8

ORDER granting 6 Plaintiff's Motion for Remand. The Clerk is directed to remand this case to state court and then to close the case. Signed by Judge Susan C Bucklew on 1/15/2015. (ALK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
LINDA R. BARROW,
Plaintiff,
v.

Case No: 8:14-cv-2900-T-24-AEP

DOLGENCORP, LLC d/b/a DOLLAR
GENERAL STORE #10814,
Defendant.

ORDER
Before the Court is Plaintiff’s Motion for Remand in which Plaintiff seeks an order
remanding this case to Hillsborough County Circuit Court. Dkt. 6. Defendant filed a response in
opposition. Dkt. 7. For the reasons discussed below, the Court remands this case to state court.
I.

Background
This is a personal injury case based on alleged negligence arising from premises liability

that was filed in state court on June 16, 2014. Dkts. 1, 2. Plaintiff is a resident of Florida and
Defendant is a Limited Liability Company with its principal place of business in Goodlettsville,
Tennessee.1 Dkt. 1 at 5. At the time the complaint was filed in state court, Plaintiff’s demand for
damages exceeded $15,000, exclusive of interest, costs and attorneys’ fees. Dkt. 2 at 1, 3.
On November 19, 2014, Defendant filed a notice of removal. Dkt. 1. Defendant asserted
that Plaintiff’s testimony during an October 29, 2014 deposition first established that the
jurisdictional amount sought by Plaintiff exceeded $75,000 and sought to remove the case under

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Defendant has not established citizenship for purposes of diversity jurisdiction. Because limited liability
companies are citizens of all states of which a member of the company is a citizen, the Court needs to know
the names and citizenships of all of the members of each limited liability company in order to determine
whether this Court has subject matter jurisdiction over this case. See Rolling Greens MHP, L.P. v. Comcast
SCH Holdings L.L.C., 374 F.3d 1020, 1022 (11th Cir. 2004).

28 U.S.C. § 1332.2
During the deposition, Plaintiff was asked the following question and provided the
following answer regarding damages:
Q:

Do you contend that the damages you suffered at Dollar General exceed $75,000

as a result of this incident?
A:

I -- I would say yes because the pain I’m having and the suffering I’m having with

my back, because something has got to be done.
Dkt. 1-5 at 24.
Pursuant to 28 U.S.C. § 1446, “if the case stated by the initial pleading is not removable, a
notice of removal may be filed within thirty days after receipt by the defendant, through service or
otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first
be ascertained that the case is one which is or has become removable.” 28 U.S.C. § 1446(b)(3).
Thus, the notice of removal was timely filed with this Court because it was filed within 30 days of
Defendant’s receipt of Plaintiff’s deposition.
II.

Analysis
Plaintiff argues that this case should be remanded to state court because Defendant has

failed to clearly and unambiguously establish that the amount in controversy exceeds $75,000.
Plaintiff is correct that Defendant has the burden of establishing that federal jurisdiction
exists. See Williams v. Best Buy Co., Inc., 269 F.3d 1316, 1319 (11th Cir. 2001). Where, as 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. Id. (citations omitted). “Once it has been established that the proponent has shown

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Under 28 U.S.C. § 1332, the Court has jurisdiction over civil actions where the matter in controversy
exceeds $75,000 and is between citizens of different states. 28 U.S.C. § 1332(a)(1).

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that the jurisdictional minimum has been met, the proponent’s estimate of the claim’s value must
be accepted unless there is a ‘legal certainty’ that the claim is actually for less than the
jurisdictional amount.” De Varona v. Disc. Auto Parts, LLC, 860 F. Supp. 2d 1344, 1348-49 (S.D.
Fla. 2012) (quoting Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 541 (7th Cir. 2006)). The
use of reasonable inferences and deductions is permissible to show the amount that is in
controversy in the case. See Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 754 (11th Cir.
2010). However, courts must be mindful that removal statues are construed narrowly and that
uncertainties are resolved in favor of remand. See Burns v. Windsor, 31 F.3d 1092, 1095 (11th
Cir. 1994).
In the motion for remand, Plaintiff’s counsel argues that the amount in controversy does
not exceed $75,000. Dkt. 6 at 5, 6, 7. In doing so, counsel states that “[t]he statement by the
Claimant [in her deposition] who is untrained in such matters is overcome by the clear statement
… that the Plaintiff concedes the compensatory damages do not exceed $75,000.” Id. at 6. As
Plaintiff’s counsel is an officer of the Court and is bound by Federal Rule of Civil Procedure
11(b)3, the Court will accept Plaintiff’s counsel’s statement that Plaintiff is not seeking in excess
of $75,000 in damages, despite the fact that Plaintiff herself may have stated as much in her
deposition. Should Plaintiff later attempt to amend her complaint and/or otherwise seek damages
in excess of $75,000, she may be judicially estopped from doing so, because this Court relied on
Plaintiff’s counsel’s representation to the Court that Plaintiff is not seeking more than $75,000 in
damages. See, e.g., Smith v. Avatar Properties, Inc., 714 So. 2d 1103, 1107 (Fla. 5th DCA 1998)
(stating that judicial estoppel is an equitable doctrine used to prevent litigants from taking “totally

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Pursuant to Fed. R. Civ. P. 11(b), by signing the motion for remand, Plaintiff’s counsel is certifying that
to the best of his knowledge, his representations to the Court are accurate and not presented for an improper
purpose.

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inconsistent positions” in separate judicial proceedings and is “designed to prevent parties from
making a mockery of justice by inconsistent pleadings”) (citing American Nat. Bank of
Jacksonville v. Federal Dep. Ins. Corp., 710 F.2d 1528, 1536 (11th Cir. 1983)).
Defendant cites a case for the argument that once a case is properly removed, events
occurring after removal do not divest the court of jurisdiction. Dkt. 7 at 3, 6. However, in this
case, after the notice of removal was filed, Plaintiff’s counsel offered a clarification that Plaintiff
was never seeking more than $75,000 in damages. This is not the type of “event” occurring after
removal to which Defendant refers and the Court may properly remand the case to state court.
Based on the Court’s reliance on Plaintiff’s counsel’s statement, the Court finds that
remand is appropriate.
III.

Conclusion

Accordingly, it is ORDERED and ADJUDGED that Plaintiff’s Motion for Remand (Dkt. 6) is
GRANTED. The Clerk is directed to remand this case to state court and then to close this case.
DONE AND ORDERED at Tampa, Florida, this 15th day of January, 2015.

Copies To: Counsel of Record

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