Hooper v. Nationwide Insurance Company of America

Filing 48

ORDER: See Order for details. The Clerk is directed to remand this case to the Twelfth Judicial Circuit, in and for Manatee County, Florida. The Clerk is further directed to terminate any previously scheduled deadlines and hearings, and thereafter close this case. Signed by Judge Virginia M. Hernandez Covington on 2/8/2016. (DRW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CAROLE HOOPER,
Plaintiff,
v.

Case No. 8:15-cv-586-T-33JSS

NATIONWIDE INSURANCE COMPANY
OF AMERICA,
Defendant.
_____________________________/
ORDER
This cause comes before the Court sua sponte. After
providing Defendant Nationwide Insurance Company of America,
the

party

that

removed

this

action,

an

opportunity

to

demonstrate that the amount-in-controversy requirement has
been satisfied, the Court remands this action to the Twelfth
Judicial Circuit, in and for Manatee County, Florida.
Discussion
This action was removed to this Court from the Twelfth
Judicial Circuit, in and for Manatee County, Florida on March
17, 2015, on the basis of diversity jurisdiction. (Doc. # 1).
When jurisdiction is premised upon diversity of citizenship,
28 U.S.C. § 1332(a) requires, among other things, that “the
matter in controversy exceeds the sum or value of $75,000,

1 

exclusive of interest and costs.” 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.” Williams v. Best Buy Co., 269 F.3d 1316, 1319
(11th Cir. 2001). When removal is based on the first paragraph
of 28 U.S.C. § 1446(b), as is the case here (Doc. # 1 at 4),
a defendant may rely on their own affidavits, declarations,
other documentation, or other summary-judgment type evidence.
Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 754-55
(11th Cir. 2010). If “damages are unspecified, the removing
party bears the burden of establishing the jurisdictional
amount by a preponderance of the evidence.” Lowery v. Ala.
Power Co., 483 F.3d 1184, 1208 (11th Cir. 2007).
The

Complaint

does

not

state

a

specified

claim

to

damages. (Doc. # 2 at ¶ 1) (stating “[t]his is an action for
damages in excess of Fifteen Thousand and no/100 Dollars
($15,000), exclusive of costs and interest”). Furthermore, in
its Notice of Removal (Doc. # 1), Nationwide states in a
conclusory fashion that the amount in controversy exceeds
$75,000.00 and relies on a pre-suit demand letter, which is
attached to the Notice of Removal, to satisfy the amount-incontroversy jurisdictional threshold. (Id. at 3). The demand

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letter

requests

that

Nationwide

tender

policy

limits

in

satisfaction of the claim. (Doc. # 1-2).
Concerned the record then before it did not demonstrate
by

a

preponderance

of

the

evidence

that

the

amount

in

controversy exceeded $75,000.00, the Court, on February 4,
2016,

entered

an

Order

supplemental

memorandum

controversy

requirement

directing

Nationwide

demonstrating
had

been

how

met.

the

(Doc.

to

file

a

amount-in#

45).

In

response, Nationwide filed a supplemental memorandum that
states:
3. Plaintiff has alleged that she sustained
permanent injuries in the subject accident and is
seeking compensation for past medical expenses,
future medical expenses, lost wages, loss of future
earning capacity, and non-economic damages.
4. On September 18, 2015, Plaintiff issued a
settlement demand in the amount of $600,000.00. See
correspondence from Plaintiff’s Counsel attached
hereto as Exhibit “A.”
5. After mediation reached an impasse, Plaintiff
served Defendant with a Proposal for Settlement in
an amount well exceeding the $75,000.00 amount in
controversy requirement established for diversity
jurisdiction in the United States District Court,
Middle District of Florida. See 28 U.S. Code § 1332
6. Plaintiff has alleged past medical expenses
totaling at least $80,000.00 and future medical
expenses ranging upwards of $28,000.00.
(Doc. # 46 at ¶¶ 3-6).
A second demand letter is attached to the supplemental
memorandum, which shows that Hooper offered to settle the

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case prior to mediation for $600,000. (Doc. # 46-1). Hooper
also served a proposal of settlement after mediation reached
an impasse (Doc. # 42), which according to Nationwide is “in
an

amount

well

exceeding

the

$75,000.00”

amount-in-

controversy requirement. (Doc. # 46 at ¶ 5). However, no
documentation supporting the demand for $600,000 is included
or attached to the second demand letter. (Doc. # 46-1). Nor
does

the

supplemental

memorandum

contain

any

facts,

or

attachments, to support Nationwide’s supposition as to the
amount of the post-mediation demand or Hooper’s past and
future medical expenses. (Doc. # 46).
The Court notes that a demand to tender policy limits
does

not

automatically

establish

that

the

amount-in-

controversy requirement has been satisfied. Martins v. Empire
Indem. Ins. Co., No. 08-60004-CIV, 2008 WL 783762, at *2 (S.D.
Fla. Mar. 21, 2008) (stating, “[i]n determining the amount in
controversy in the insurance context, numerous courts have
held that it is the value of the claim not the value of the
underlying

policy,

that

determines

the

amount

in

controversy”) (internal quotation marks omitted) (citation
omitted); see also Lamb v. State Farm Fire Mut. Auto. Ins.
Co., No. 3:10-cv-615-J-32JRK, 2010 WL 6790539, at *2 (M.D.
Fla. Nov. 5, 2010); Piazza v. Ambassador II JV, L.P., No.

4 

8:10-cv-1582-T-23EAJ, 2010 WL 2889218, at *1 (M.D. Fla. July
21, 2010)); Standridge v. Wal–Mart Stores, Inc., 945 F. Supp.
252, 256 (N.D. Ga. 1996) (noting pre-suit demand letter was
“nothing

more

settlement

than

purposes

posturing
and

by

cannot

plaintiff’s

be

counsel

considered

a

for

reliable

indicator of the damages plaintiff is seeking”). Likewise,
the “mere allegation[] of severe injuries [is] insufficient
to establish the amount in controversy.” Green v. Travelers
Indem. Co., No. 3:11-cv-922-J-37TEM, 2011 WL 4947499, at *3
(M.D. Fla. Oct. 8, 2011) (citing Ransom v. Wal-Mart Stores,
Inc., 920 F. Supp. 176, 178 (M.D. Ga. 1996)).
A review of the pre-suit demand letter and second demand
letter shows those demands to be mere puffery or posturing
because, as presented to the Court, they do not detail facts
to support Hooper’s demands. Likewise, the post-mediation
proposal of settlement has not been presented to the Court,
despite the fact that Nationwide was afforded an opportunity
to

do

so,

and

accordingly

is

not

in

the

record

for

consideration. In addition, Nationwide has not submitted any
documentation that would enable the Court to valuate Hooper’s
claim.

Furthermore,

despite

the

fact

that

this

an

uninsured/underinsured motorist claim, Nationwide has not

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provided the Court with any information as to how much Hooper
has already been paid through personal injury protection.
In sum, the Complaint does not claim a specific amount
of damages and the Notice of Removal does not provide anything
other

than

a

conclusory

assertion

that

the

amount-in-

controversy threshold has been satisfied. Not satisfied that
Nationwide had carried its burden as the removing defendant,
the Court afforded Nationwide an opportunity to demonstrate
how

the

amount-in-controversy

requirement

had

been

met.

However, Nationwide submitted a bare-bones supplement devoid
of any documentation that would allow the Court to valuate
Hooper’s claim. The record before the Court does not show by
a preponderance of the evidence that the amount in controversy
exceeds $75,000.00. As such, the Court determines Nationwide
has not sufficiently demonstrated that the jurisdictional
amount-in-controversy

threshold

has

not

been

satisfied.

Therefore, this case is remanded to the Twelfth Judicial
Circuit, in and for Manatee County, Florida.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

The Clerk is directed to REMAND this case to the Twelfth
Judicial Circuit, in and for Manatee County, Florida.

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(2)

The

Clerk

previously

is

further

scheduled

directed

deadlines

to

terminate

any

and

hearings,

and

thereafter CLOSE THIS CASE.
DONE and ORDERED in Chambers in Tampa, Florida, this 8th
day of February, 2016.

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