Zabic v. Verizon Wireless Services, LLC et al

Filing 14

ORDER: This case is remanded to state court pursuant to 28 U.S.C. § 1447(c), because this Court lacks subject matter jurisdiction. After remand has been effected, the Clerk shall CLOSE THIS CASE. Signed by Judge Virginia M. Hernandez Covington on 10/9/2015. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
AMANDA ZABIC,
Plaintiff,
v.

Case No. 8:15-cv-2214-T-33EAJ

CELLCO PARTNERSHIP d/b/a VERIZON
WIRELESS, and CELLULAR SALES OF
KNOXVILLE, INC.,
Defendants.
_______________________________/
ORDER
This cause comes before the Court sua sponte. The Court
remands this action pursuant to 28 U.S.C. § 1447(c), after
finding that it lacks subject matter jurisdiction.
I.

Background
In September of 2012, Amanda Zabic, who was 18 at the

time, sought to upgrade her cellular telephone at a Verizon
store

in

Bartow,

Florida.

(Doc.

#

13

at

¶

15).

Zabic

indicates that a Verizon employee, Joshua Stuart, “provided
Ms. Zabic with a new phone and assisted her in transferring
data which had been electronically stored in Ms. Zabic’s old
cellular phone,” to a new cellular phone. (Id. at ¶ 17).
The electronically stored data included “photographs of Ms.
Zabic in an undressed, or semi-dressed state.” (Id. at ¶
18).

According to Zabic, Verizon “promised and repeatedly

assured that all data would be transferred from her old

phone to the new unit without the necessity of displaying
any of the photographs and without the photographs or other
personal

information

being

seen

employees or anyone else.” (Id.

or

viewed

at 19).

by

Verizon

Despite these

assurances, Zabic contends that Verizon employees, including
Stuart and another employee (Gregory Lambert) viewed the
nude photographs of her, saved the photographs to their
personal cellular phones, and then shared those images with
others.

Specifically, Zabic alleges that when one of her

acquaintances,
Florida

Joshua

Verizon

“photographs

of

Wingate,

store,
a

nude,

came

Verizon

to

the

same

Bartow,

showed

Wingate

partially

clothed

employees

semi-nude

and

Amanda Zabic.” (Id. at ¶ 28).
Wingate

advised

Zabic

that

Verizon

employees

were

displaying her nude photos and, accordingly, Zabic contacted
law enforcement. (Id. at ¶¶ 30, 33).

According to the

Complaint, Stuart and Lambert “were charged and convicted of
Offenses against Computer Uses, Prohibition of Lewd Acts and
Theft.” (Id. at ¶ 34).
On August 26, 2015, Zabic filed a Complaint against
Verizon

Wireless

Knoxville,

Inc.

Services,
in

the

LLC

Circuit

2

and
Court

Cellular
of

the

Sales

of

Thirteenth

Judicial Circuit for Hillsborough County, Florida, bringing
the

following

counts:

negligence,

invasion

of

privacy,

public disclosure of private facts, theft and conversion,
civil

remedies

for

criminal

practices,

intentional

infliction of emotional distress, respondeat superior, and
vicarious liability. (Doc. # 2).
On September 23, 2015, Defendants removed this action
on the basis of the Court’s diversity jurisdiction. (Doc. #
1).

Thereafter, on October 2, 2015, Zabic filed an Amended

Complaint naming Cellco Partnership d/b/a Verizon Wireless
and Cellular Sales of Knoxville, Inc. as the Defendants.
(Doc. # 13).

Defendants have provided detailed information

about their citizenship, such that the Court is satisfied
that

the

parties

are

completely

diverse.

However,

as

explained below, Defendants, as the removing parties, have
not demonstrated that the amount in controversy exceeds the
jurisdictional

threshold

of

$75,000.00.

The

matter

is

accordingly remanded to state court.
II. Legal Standard
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).

3

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. The only question is whether the amount
in controversy exceeds the $75,000 jurisdictional threshold.
In both the initial Complaint and the Amended Complaint,
Zabic has not specified the precise amount of relief sought
in

the

lawsuit,

instead

alleging

damages

“in

excess

of

$15,000.” (Doc. # 2 at ¶ 1; Doc. # 13 at ¶ 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

4

are construed narrowly; where 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) (emphasis added).
III. Analysis
As previously stated, the Complaint alleges damages in
excess

of

damages,

$15,000.

Defendants,

Without
as

any

the

further

removing

specificity

parties,

bear

on
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.
In

the

Notice

of

Removal,

Defendants

indicate:

“Plaintiff’s counsel has demanded $150,000 to settle the
case” and “[t]herefore, the amount in controversy exceeds
$75,000.00, exclusive or interest and costs, as required for
diversity jurisdiction in Federal Court.” (Doc. # 1 at 4).
No further information regarding the amount in controversy
is provided in the Notice of Removal.
The Court has evaluated the demand letter mentioned in
the Notice of Removal; however, a number of federal courts,
including
offers

do

the
not

present

Court,

automatically

5

have

held

establish

that

settlement

the

amount

in

controversy for purposes of diversity jurisdiction. Lamb v.
State Farm Fire Mut. Auto. Ins. Co., No. 3:10-CV-615-J32JRK, 2010 WL 6790539, at *2 (M.D. Fla. Nov. 5, 2010);
Piazza v. Ambassador II JV, L.P., No. 8:10-CV-1582-T-23EAJ,
2010

WL

2889218,

at

*1

(M.D.

Fla.

July

21,

2010)(“A

settlement offer is relevant but not determinative of the
amount in controversy.”).
Instead, courts have analyzed whether demand letters
merely

“reflect

puffing

and

posturing,”

or

whether

they

provide “specific information to support the plaintiff's
claim for damages” and thus offer a “reasonable assessment
of the value of [the] claim.” Lamb, 2010 WL 6790539, at *2
(quoting Jackson v. Select Portfolio Servicing, Inc., 651 F.
Supp. 2d 1279, 1281 (S.D. Ala. 2009)); Piazza, 2010 WL
2889218, at *1 (“a settlement demand provides only marginal
evidence

of

‘plaintiff's

the

amount

letter

is

in

controversy

nothing

more

than

because
posturing

the
by

plaintiff's counsel for settlement purposes and cannot be
considered a reliable indicator of the damages’ sought by
the plaintiff.”).
Upon

review,

this

Court

finds

that

Zabic’s

demand

reflects mere posturing rather than a reasonable assessment

6

of the value of her claim. The demand letter is factually
detailed, but contains no analysis of why her claim is worth
$150,000.00, or any other amount.

Zabic’s counsel correctly

indicates in the demand letter: “This is not a claim in
which the loss and damages suffered by Ms. Zabic can be
quantified with any degree of precision.” (Doc. # 1-1 at
25).

Rather than trying to zero-in on the amount of the

loss, Zabic’s counsel discusses only one other case, as
follows:
With
respect
to
damages
and
what
constitutes a reasonable amount, I
commend your attention to the reported
case styled In re Thomas, 254 B.R. 879
(S.C. Dist. Bkrtcy Ct. 1999), a case
arising in the context of a bankruptcy
proceeding in which the debtor’s finance
[sic] – both private, non-celebrity
citizens - was awarded $300,000 in
compensatory damages, together with an
additional $125,000 in punitive damages
for the mailing of private, sexually
explicit photographs of a girlfriend and
the threat of publication.
The facts in the Thomas case were egregious and bear
little resemblance to those presented here. To summarize,
Ms. Hardy had a sexual relationship with Mr. Thomas and
allowed Mr. Thomas to take photographs during various sexual
acts.

Thomas,

relationship

254

with

B.R.
Mr.

at

882.

Thomas

7

and

Ms.
began

Hardy
a

ended

new

the

romantic

relationship with Mr. Prezioso, which led to an engagement
to be married. Id. at 882-83.

Thereafter, Mr. Thomas mailed

a copy of some of the sexually explicit photographs of Ms.
Hardy to Mr. Prezioso and demanded money from Mr. Prezioso
as well as the opportunity to have sex with Ms. Hardy once
again. Id. Unless these conditions were met, Mr. Thomas
threatened
Hardy’s

to

send

employer.

the
Id.

sexually
Mr.

explicit

Thomas

was

photos

found

to

guilty

Ms.
of

criminal extortion and, in a trial brought by Mr. Prezioso,
the court awarded $300,000 for intentional infliction of
emotional distress as well as punitive damages. Id. at 886.1
While

the

present

case

also

involves

provocative

photographs, there are no other similarities.
Zabic’s January 15, 2015, demand letter - as attached
to

the

Notice

of

Removal

-

fails

to

explain

how

Zabic

arrived at the $150,000.00 figure and does not provide a
discussion of the economic or non-economic damages she may
be seeking with any particularity. See Johnson v. Liberty
Mut. Ins. Co., No. 8:13-cv-491, 2013 WL 1503109, at *4 (M.D.
Fla. Apr. 12, 2013) (finding that the pre-suit demand letter
1

 The Thomas case also discussed the unique issue of whether an
injured person can recover punitive damages against a deceased
tortfeasor’s estate, as Mr. Thomas died during the course of
the proceedings. Id. at 887.

8

was a general demand as it contained no specific information
as

to

the

amount

of

damages

sustained

by

plaintiff);

Standridge v. Wal–Mart Stores, 945 F. Supp. 252, 256 (N.D.
Ga. 1996)(holding that a pre-suit demand letter was “nothing
more than posturing by plaintiff's counsel for settlement
purposes and cannot be considered a reliable indicator of
the damages plaintiff is seeking.”).

That Zabic offered to

settle her case for more than $75,000.00 does not establish
by

a

preponderance

of

the

evidence

that

the

amount

in

controversy requirement is met. See Daniel v. Nationpoint,
No. 2:07-cv-640, 2007 U.S. Dist. LEXIS 93367, at *5 (M.D.
Ala. Dec. 19, 2007).
In

addition,

that

the

demand

letter

was

presented

months in advance of the initiation of this suit further
erodes its value for the purposes of determining the amount
in controversy.

A number of courts have indicated that pre-

suit demand letters (as opposed to offers to settle after
the filing of the complaint), are often worthy of very
little consideration.

See, e.g., Elder v. TFAL, Inc., 2007

U.S. Dist. LEXIS 82123, at *8 (N.D. Ga. Oct. 31, 2007) (in
the context of determining amount in controversy, giving
“little weight” to a demand letter submitted prior to the

9

filing of the complaint); Saberton v. Sears Roebuck & Co.,
392 F. Supp. 2d 1358, 1360 (M.D. Fla. 2005)(“Although case
law

permits

the

use

of

post-suit

demand

letters

in

determining the amount in controversy requirement, [a] presuit demand letter will not be considered.”).
Given
remand,”

that

Burns,

Defendants
controversy

have

“uncertainties
31

F.3d

failed

exceeds

are

at

1095,

to

resolved

prove

$75,000.

the

in

Court

that

the

Consequently,

favor

finds

that

amount
the

of

in

Court

determines that it lacks subject matter jurisdiction, and
this case must be remanded to state court.

See 28 U.S.C. §

1447(c) (“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:
(1)

This case is remanded to state court pursuant to 28
U.S.C.

§

1447(c),

because

this

Court

lacks

subject

matter jurisdiction.
(2)

After remand has been effected, the Clerk shall CLOSE
THIS CASE.

10

DONE and ORDERED in Chambers, in Tampa, Florida, this
9th day of October, 2015.

Copies: All counsel of record

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