Biffar v. GCA Services Group, Inc.

Filing 31

ORDER: Plaintiff's Motion to Remand 22 is GRANTED as this Court lacks subject matter jurisdiction. The Clerk is directed to remand this case to state court. After remand has been effected, the Clerk shall CLOSE THIS CASE. Signed by Judge Virginia M. Hernandez Covington on 7/1/2015. (KNC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
HELMUT G. BIFFAR,
Plaintiff,
v.

Case No. 8:15-cv-1154-T-33TGW

GCA SERVICES GROUP, INC.,
Defendant.
_____________________________/
ORDER
This cause comes before the Court pursuant to Plaintiff
Helmut G. Biffar’s Motion to Remand (Doc. # 22), filed on
June 1, 2015. Defendant GCA Services Group, Inc. (“GCA”) filed
a response in opposition thereto on June 18, 2015. (Doc. #
28). For the reasons set forth below, and at the Motion
hearing held on June 22, 2015 (Doc. # 30), Biffar’s Motion to
Remand

is

granted

as

this

Court

lacks

subject

matter

jurisdiction.
I.

Background
On October 11, 2006, GCA employed Biffar as a janitor at

Pasco Hernando Community College. (Doc. # 2 at ¶ 6). Biffar
remained employed by GCA until April 22, 2011, when GCA
terminated Biffar for unauthorized computer use, “among other
reasons.” (Id. at ¶¶ 6, 20).

On March 7, 2012, Biffar filed a Charge of Discrimination
with

the

United

Commission

based

States
on

Equal

Employment

disability

and

Opportunity

national

origin

discrimination. (Id. at ¶ 3; Doc. # 8-1). Biffar subsequently
initiated this action in the Circuit Court of the Sixth
Judicial Circuit for Pasco County, Florida, on April 21, 2015,
bringing three counts against GCA. (Doc. # 2). Count I alleges
a violation of the Florida Civil Rights Act (“FCRA”) based on
handicap discrimination. (Id. at ¶ 32). Count II alleges a
violation

of

the

FCRA

based

on

perceived

handicap

discrimination. (Id. at ¶ 37). Count III alleges a violation
of

the

FCRA

based

on

national

origin

discrimination,

contending that Biffar was discriminated against because he
is not Hispanic. (Id. at ¶ 40). Notably absent from the
Complaint is any federal claim.
On May 12, 2015, GCA removed this action on the basis of
diversity jurisdiction. (See Doc. # 1). On June 1, 2015,
Biffar filed the present Motion to Remand (Doc. # 22),
asserting

that

the

dispute

did

not

meet

the

amount

in

controversy requirement. See 28 U.S.C. § 1332. Thereafter, on
June 18, 2015, GCA filed a response to the present Motion.
(Doc. # 28).
II. Legal Standard

2

Under 28 U.S.C. § 1441, a defendant can remove an action
to a United States District Court if that court has original
jurisdiction over the action. 28 U.S.C. § 1441(a). United
States District Courts have original jurisdiction over all
civil actions between parties of diverse citizenship where
the amount in controversy exceeds $75,000. See 28 U.S.C. §
1332(a). Removal is proper if the complaint makes it “facially
apparent” that the amount in controversy exceeds $75,000.
Williams v. Best Buy, Co., 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.
In this case, it is undisputed that the parties are of
diverse citizenship.1 The only question is whether the amount
in controversy exceeds the $75,000 jurisdictional threshold.
In the Complaint, Biffar has not specified the precise amount
of relief sought in the lawsuit, instead alleging damages “in
excess” of $15,000 for violations of the FCRA. (Doc. # 2 at

1 According to the Notice of Removal, GCA is a Tennessee
corporation with its principal place of business in
Tennessee, whereas Biffar is a citizen of Florida. (See Doc.
## 1-2).

3

¶ 1). Where, as here, “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). “[R]emoval
statutes
defendant

are

construed

clash

about

narrowly;

where

jurisdiction,

plaintiff

and

uncertainties

are

resolved in favor of remand.” Burns v. Windsor Ins. Co., 31
F.3d 1092, 1095 (11th Cir. 1994) (emphasis added).
III. Analysis
As previously stated, the Complaint alleges damages “in
excess” of $15,000 dollars. (Doc. # 2 at ¶ 1). Without any
further specificity on damages, GCA, as the removing party,
bears the burden of proving, by a preponderance of the
evidence, that the amount in controversy is in excess of
$75,000. See Lowery, 483 F.3d at 1208.
Both parties agree that, at the time of his dismissal,
Biffar was earning $7.55 per hour for approximately 40 hours
a week. (Doc. # 1 at ¶ 12; Doc. # 22 at 5). By factoring in
Florida’s minimum wage increases from the date of termination
(April 22, 2011) to the present,2 GCA estimates that Biffar’s

2
According to the Notice of Removal, “Florida’s minimum wage
increased on the first day of 2012, 2013, 2014, and 2015 to

4

back wages would total $61,834.01. (See Doc. # 3 at ¶ 5).
This amount is derived from “[t]aking Plaintiff’s average
hours worked per week multiplied by $7.55 for the remaining
36 weeks of 2011, and then doing the same for 2012, 2013,
2014, and (the first 19 weeks of) 2015 using the applicable
minimum wage.” (Doc. # 1 at ¶ 13).
In his Motion, Biffar claims that GCA did not consider
that his damages were partially mitigated by Social Security
Disability benefits, an amount of $716.00 per month, which
Biffar began to receive in June of 2012. (Doc. # 22 at 5).
Considering the Social Security Disability benefits, Biffar
calculates his total possible back pay loss at $37,039.76,
although he does not factor in the minimum wage increases.
(Id.). However, this Court notes that the Eleventh Circuit
has previously held that “Title VII awards are not subject to
reduction

by

amount

plaintiff

received

in

unemployment

compensation”. See Dominguez v. Tom James Co., 113 F.3d 1188,
1189 (11th Cir. 1997)(holding that, analogous to Title VII
cases, “Social Security benefits are not to be deducted from
ADEA awards.”); see also Brown v. A.J. Gerrard Mfg. Co., 715

$7.67, $7.79, $7.93 and $8.05, respectively.” (Doc. # 1 at ¶
13).

5

F.2d 1549, 1550 (11th Cir. 1983)(holding that “deducting
unemployment payments from Title VII back pay awards should
be consistently disallowed.”). As such, the Court declines to
deduct Biffar’s Social Security Disability benefits from his
possible back pay, and will thus adopt GCA’s $61,834.01 back
pay amount, for purposes of the present analysis. (Doc. # 1
at ¶ 13).
While the back pay amount alone does not satisfy the
$75,000 jurisdictional requirement, GCA provides additional
arguments as to why the requirement is, nevertheless, met.
(See Doc. # 1; Doc. # 28). GCA contends that, in addition to
back pay, Biffar seeks front pay damages, which will likely
put

the

amount

in

controversy

over

the

jurisdictional

requirement. (Id. at ¶ 16). GCA claims that “the Court can
reasonably estimate that, in addition to back pay, [Biffar]
could recover front damages at the very least in an amount
equivalent to one year’s pay (Current minimum wage $8.05 X
37.68 hours X 52 weeks), which would increase the amount in
controversy to $77,606.86.” (Id. at ¶ 15).
However, speculation regarding front pay cannot be used
to supplement insufficient back pay for the purpose of meeting
the jurisdictional requirement. See Snead v. AAR Mfg., Inc.,
No. 8:09-cv-1733-T-30EAJ, 2009 WL 3242013, at *2-3 (M.D. Fla.

6

Oct.

6,

2009)(finding

that

“Defendant’s

calculations

regarding front pay . . . are pure speculation”); Hammer v.
CVS Pharmacy Inc. ex rel. Holiday CVS, L.L.C., No. 8:14-cv3243-T-33EAJ, 2015 WL 438351, at *3 (M.D. Fla. Feb. 3,
2015)(finding that a speculative front pay amount could not
be

aggregated

to

back

pay

to

meet

the

jurisdictional

requirement); see also Brown v. Am. Express Co., No. 0961758-CIV, 2010 WL 527756, at *5 (S.D. Fla. Feb. 10, 2010)
(removing

defendant

suggested

that

one

year

of

the

plaintiff’s base salary - $30,010.00 - was reasonable to
include in the amount-in-controversy analysis, but, the court
found that to “include this figure in calculating the amount
in

controversy

would

require

this

Court

to

‘engage

in

impermissible speculation’”).
GCA

also

compensatory
attorneys’

argues

damages,
fees

in

that

the

punitive
the

Court

damages,

must
and

jurisdictional

consider
potential

requirement

calculation. (Id. at ¶¶ 17-18; Doc. # 28 at 7). However, the
Court finds these arguments unavailing, similarly amounting
only to speculation. To begin, GCA can only speculate as to
potential compensatory damages, and therefore, the Court does
not consider those damages in its analysis of whether the
jurisdictional requirement has been met. See Golden v. Dodge-

7

Markham

Co.,

Inc.,

1

F.

Supp.

2d

1360

(M.D.

Fla.

1998)(determining that the compensatory damages were too
“nebulous” to be considered in proving, by a preponderance of
the evidence, the jurisdictional amount).
The

Court

similarly

declines

to

consider

punitive

damages as Biffar’s Complaint does suggest that he seeks such
damages. (See Doc. # 2). Finally, while the relevant statute
– Fla. Stat. § 760.11(5) – awards attorneys’ fees, it does so
only by leave of court. Thus, as GCA can only speculate as to
whether

attorneys’

fees

would

be

awarded,

the

Court

determines that attorneys’ fees should not be considered in
the jurisdictional requirement calculation.
Federal jurisdiction is limited, and removal statutes
are construed narrowly and uncertainties are resolved in
favor of remand. Burns, 31 F.3d at 1095. GCA, as the removing
party, has not shown by a preponderance of the evidence that
the amount in controversy is in excess of $75,000. Therefore,
the Court grants Biffar’s Motion to Remand. See 28 U.S.C. §
1447 (“If at any time before final judgment it appears that
the district court lacks subject matter jurisdiction, the
case shall be remanded.”).
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:

8

(1)

Plaintiff’s Motion to Remand (Doc. # 22) is GRANTED as
this Court lacks subject matter jurisdiction.

(2)

The Clerk is directed to remand this case to state court.
After remand has been effected, the Clerk shall CLOSE
THIS CASE.
DONE and ORDERED in Chambers, in Tampa, Florida, this

1st day of July, 2015.

Copies: All counsel of record

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