Kelly v. Kelly Services
Filing
19
ORDER: This case is remanded to the Tenth Judicial Circuit in and for Polk County Florida. The Clerk of Court is directed to remand this case to the Tenth Judicial Circuit in and for Polk County Florida. The Clerk is also directed to forward a certified copy of this Order to that Court. The Clerk is further directed to close this file and terminate any pending motions as moot. Signed by Judge James S. Moody, Jr on 1/22/2016. (LN)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
RASHAUN KELLY,
Plaintiff,
v.
Case No: 8:15-cv-2503-T-30JSS
KELLY SERVICES,
Defendant.
ORDER
THIS CAUSE is before the Court sua sponte. On January 21, 2016, after Defendant
had filed a motion to dismiss (Dkt. 9), the Court ordered Defendant to show cause (Dkt.
16) for why the case should not be remanded to state court for lack of subject matter
jurisdiction. More specifically, the Court questioned how the amount in controversy in this
case—which involves an alleged wrongful termination of a substitute teacher who earned
approximately $80 per day of teaching—would exceed the Court’s $75,000 jurisdictional
threshold. See Dkt. 16, p. 2 (citing Dart Cherokee Basin Operating Co., LLC v. Owens,
135 S. Ct. 547, 553, 190 L. Ed. 2d 495 (2014)). Defendant has responded to the Court’s
order. For the reasons discussed briefly below, that response fails to show that the amount
in controversy more likely than not exceeds $75,000. See Williams v. Best Buy Co., Inc.,
269 F.3d 1316, 1320 (11th Cir. 2001). It likewise fails to establish any other basis for the
exercise of federal jurisdiction. The case will be remanded.
In response to the Court’s order to show cause, Defendant supplies an
unsubstantiated—and likely unsupportable, as will be explained below—extrapolation of
Plaintiff’s lost earnings. By Defendant’s calculation, Plaintiff’s lost earnings amount to
$20,800 annually. Though Defendant offers no evidence to support the claim, the Court’s
own calculation concludes that Defendant’s claim would indeed be spot on—if Plaintiff
were to work as a substitute teacher on every single weekday of a 52-week calendar year. 1
Of course, this would be quite the teaching schedule, one that requires the substitute to
teach (somehow) on the many days throughout the year in which the school is closed for
holidays.
Plaintiff’s lost earnings are likely far less than $20,800.
The Court recognizes that it may use its “judicial experience and common sense” to
consider other claimed damages when calculating the amount in controversy. Wineberger
v. Racetrac Petroleum, Inc., No. 5:14-cv-653-Oc-30PRL, 2015 WL 225760, *2 (M.D. Fla.
Jan. 16, 2015) (quoting Roe v. Michelin N. Am. Inc., 613 F.3d 1058, 1061 (11th Cir. 2010)).
But even by Defendant’s faulty calculation of lost earnings, the more than $50,000
difference between that figure and the amount necessary for the Court to exercise
jurisdiction requires the Court to speculate too much about what Plaintiff might recover.
See generally McDaniel v. Fifth Third Bank, 568 F. App’x 729, 731 (11th Cir. 2014); see
also Biffar v. GCA Servs. Grp., Inc., No. 8:15-cv-1154-T-33TGW, 2015 WL 4042103, *3
1
$20,800 annual pay/$80 per day = 260 days of work as a substitute teacher; 260 days of
work/52 weeks in a year = 5 days a week.
2
(M.D. Fla. July 1, 2015). Judicial experience tells the Court that this is too much
speculation. Compare Wineberger, 2015 WL 225760, at *2; with Biffar, 2015 WL
4042103, at *2-3 (remanding after declining to speculate, after considering evidence on
back pay, that the approximately $15,000 remaining to meet amount-in-controversy
requirement would be met with other damages). The evidence has not shown that the
amount in controversy more likely than not exceeds $75,000. The Court therefore declines
to exercise jurisdiction on that basis.
Defendant has likewise failed to demonstrate that Plaintiff’s complaint raises federal
claims over which the Court should exercise jurisdiction. Federal question jurisdiction
requires a complaint to arise from “the Constitution, laws, or treaties of the United States,”
28 U.S.C. § 1331, and the issue “must appear on the face of the plaintiff’s well-pleaded
complaint.” Cmty. State Bank v. Strong, 651 F.3d 1241, 1251 (11th Cir. 2011). A plaintiff
remains the master of the complaint, and he may avoid federal jurisdiction by exclusive
reliance on state law. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S. Ct. 2425, 96
L. Ed. 2d 318 (1987). Federal jurisdiction over a state law claim will exist only if a federal
issue is: “(1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of
resolution in the federal court without disrupting the federal-state balance approved by
Congress.” Gunn v. Minton, 133 S. Ct. 1059, 1065, 185 L. Ed. 2d 72 (2013).
Plaintiff did file a charge of discrimination with the Florida Commission on Human
Rights in which he claimed that Defendant violated the Civil Rights Act of 1964. (The
Court does take note of the fact that the precise terminology Plaintiff used in the charge of
discrimination form—“Title VII of the Civil Rights Act of 1964, as amended”—suggests
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that that part of the form contained boilerplate language.) But the face of Plaintiff’s
complaint governs, not a form he submitted to a state agency. Strong, 651 F.3d at 1251.
Plaintiff’s complaint, filed in state court, does not raise any federal issues, let alone a
substantial one. See Dkt. 2; Gunn, 133 S. Ct. at 1065. This Court does not have jurisdiction.
It is therefore ORDERED AND ADJUDGED that:
1.
This case is remanded to the Tenth Judicial Circuit in and for Polk County
Florida.
2.
The Clerk of Court is directed to remand this case to the Tenth Judicial
Circuit in and for Polk County Florida. The Clerk is also directed to forward a certified
copy of this Order to that Court.
3.
The Clerk is further directed to close this file and terminate any pending
motions as moot.
DONE and ORDERED in Tampa, Florida, this 22nd day of January, 2016.
Copies furnished to:
Counsel/Parties of Record
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