Zabic v. Verizon Wireless Services, LLC et al

Filing 39

ORDER: Zabic's Second Motion to Remand and Motion for Award of Attorneys' Fees and Costs 21 is GRANTED to the extent that this case is remanded to state court pursuant to 28 U.S.C. § 1447(c), because this Court lacks subject matter jurisdiction. Zabic's request for fees and costs for improper removal is DENIED. After remand has been effected, the Clerk shall CLOSE THIS CASE. Signed by Judge Virginia M. Hernandez Covington on 12/19/2015. (KAK)

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

Case No. 8:15-cv-2565-T-33AEP

VERIZON WIRELESS SERVICES, LLC
and CELLULAR SALES OF KNOXVILLE,
INC.,
Defendants.
_______________________________/
ORDER
This cause comes before the Court pursuant to Plaintiff
Amanda Zabic’s Second Motion to Remand and Motion for Award
of Attorneys’ Fees and Costs (Doc. # 21), which was filed on
November 17, 2015.
Inc.

filed

a

Defendant Cellular Sales of Knoxville,

Response

in

Opposition

December 4, 2015. (Doc. # 32).

to

the

Motion

on

For the reasons that follow,

the Court grants the Motion by remanding this case to state
court pursuant to 28 U.S.C. § 1447(c), after finding that it
lacks

subject

matter

jurisdiction.

However,

after

due

consideration, the Court declines to award attorneys fees
and costs.
I.

Factual 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.

#

7

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,
acquaintances,
Florida

Joshua

Verizon

“photographs

of

Zabic

Wingate,

store,
a

alleges

nude,

Verizon

that

came

2

one

the

same

Bartow,

showed

Wingate

partially

clothed

employees

semi-nude

Amanda Zabic.” (Id. at ¶ 28).

to

when

and

of

her

Wingate

advised

Zabic

that

Verizon

employees

were

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

According to Zabic,

Stuart and Lambert “were charged and convicted of Offenses
against Computer Uses, Prohibition of Lewd Acts and Theft.”
(Id. at ¶ 34).
II.

Procedural History
Prior to initiating a lawsuit, Zabic’s counsel sent a

lengthy demand letter dated January 15, 2015, to Cellular
Sales of Knoxville, Inc. (the “First Demand Letter”). (Doc.
# 13-1 at 18-24).
counsel

commented

In the First Demand Letter, Zabic’s
on

“the

emotional

and

psychological

damages to [Zabic], an innocent young woman” and demanded
$150,000 “in satisfaction of all potential claims.” (Id. at
20, 23).

Defendants made a counter-offer to settle the case

in the amount of $5,000.00, which Zabic declined. (Doc. # 21
at 7).
Thereafter, on August 26, 2015, Zabic filed a Complaint
against Verizon Wireless Services, LLC and Cellular Sales of
Knoxville,

Inc.

in

the

Circuit

Court

of

the

Thirteenth

Judicial Circuit for Hillsborough County, Florida, bringing
the

following

counts:

negligence,

3

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. # 1-1 at 5-23).
On September 23, 2015, Defendants removed the action to
this

Court

on

jurisdiction
Thereafter,

the

under
on

basis
case

October

2,

of

the

number
2015,

Court’s

diversity

8:15-cv-2214-T-33EAJ.

Zabic

filed

an

Amended

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

#

7).

The

Amended

Complaint

did

not

change

the

substance of the allegations or counts and was merely filed
to correct the name of the Verizon Defendant. (Doc. # 21 at
2).
On

October

2,

2015,

Zabic’s

counsel

transmitted

an

additional demand letter to Defendants (the “Second Demand
Letter”) upping the demand to $2 million. (Doc. # 1-2 at 12).

In the Second Demand Letter, Zabic’s counsel indicated:

“Our client came close to committing suicide because of the
embarrassment and humiliation she believed would follow her
for the rest of her life as the result of having patronized

4

your store and being victimized by your employees.” (Id. at
2).
On October 9, 2015, this Court entered an Order sua
sponte remanding this case to state Court after finding that
it lacked subject matter jurisdiction. (Doc. # 1-1 at 3747).

In the Order of Remand, the Court determined that the

Defendants

provided

detailed

information

about

their

citizenship so as to satisfy the Court that the parties were
completely diverse. (Id. at 39).

However, the Court found

that the Defendants, as the removing parties, failed to
demonstrate

that

jurisdictional
(Id.).

the

amount

threshold

in

of

controversy

$75,000,

exceeded

warranting

the

remand.

At the time of the Order of Remand, the First Demand

Letter was tendered to the Court, but the Second Demand
Letter was not.
Notably, after the Court entered its Order of Remand,
Zabic filed her Motion to Remand (the “First Motion to
Remand”) specifying, inter alia: “Plaintiff [] freely admits
that damages substantially in excess of $75,000 will be
sought in whatever forum she finds herself.” (Doc. # 13-1 at
n.1).

The

First

Motion

to

Remand

was

a

nullity

and

addressed a moot point because, at the time it was filed,

5

the

Court

had

already

entered

its

sua

sponte

Order

of

Remand. (Doc. # 1-1 at 37-47).
Not long after the Court remanded the case to state
Court, Cellular Sales of Knoxville filed a Second Notice of
Removal,

to

which

Verizon

unanimously

joined,

which

initiated this case. (Doc. # 1). Cellular Sales of Knoxville
indicates that the Court should “favorably consider a second
removal petition following a prior remand.” (Doc. # 1 at 4).
Cellular Sales of Knoxville relies on the First Motion to
Remand and the Second Demand Letter to argue that the amount
in controversy exceeds $75,000.

At this juncture, Zabic

seeks an Order of Remand, once again contending that the
jurisdictional amount in controversy has not been satisfied.
III. 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).
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

6

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.
As explained in Watson v. Carnival Corp., 436 F. App’x
954, 955 (11th Cir. 2011), “Once a case is remanded to state
court,

a

defendant

is

precluded

removal on the same ground.”

from

seeking

a

second

The “different ground” does

not refer to the type of federal jurisdiction, such as
diversity jurisdiction, but to “the pleading or event that
made the case removable.” Id. at 956. “In other words, a
defendant who fails in an attempt to remove on the initial
pleadings can file a second removal petition when subsequent
pleadings or events real a new and different ground for
removal.” Id.

As summarized in Jennings v. Powermatic, No.

3:14-cv-250-J-32JRK,

2014

U.S.

Dist.

LEXIS

66881,

at

*3

(M.D. Fla. May 15, 2014), “the mere submission of additional
evidence on the same ground offered in the initial removal
is not sufficient to justify a second removal.” Id.

7

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. # 1-1 at 5, ¶ 1; Doc. # 7 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).

Against

the

touchstone of these authorities, the Court will examine the
propriety of the Second Notice of Removal.
IV. Analysis
The Second Notice of Removal is premised on two items:
(1) Plaintiff’s First Motion to Remand filed on October 9,
2015 (after remand had already been ordered in case 8:15-cv2214-T-33EAJ), which included the statement that: “Plaintiff
reserves all right to argue and present damages in this case
in excess of the $75,000 jurisdictional minimum.

In candor

to the Court, undersigned counsel also discloses that a
subsequent demand letter was made on the Defendants in the

8

amount

of

$2,000,000,

although

there

was

no

specific

evidentiary support cited or included in that demand . . .
Plaintiff also freely admits that damages substantially in
excess of $75,000 will be sought in whatever forum she finds
herself.” (Doc. # 13-1 at n.1); and (2) Plaintiff’s October
2, 2015, Second Demand Letter seeking the payment of $2
million. (Doc. # 1-2).
The Court determines that this matter must once again
be remanded to state court.

As in its First Notice of

Removal, the Second Notice of Removal relies exclusively on
the subjective assessment of Zabic’s counsel as the basis
for satisfying the jurisdictional minimum.

The Court was

not satisfied that the jurisdictional threshold was met by a
preponderance of the evidence when initially presented with
Zabic’s counsel’s subjective impressions regarding the value
of the case, and the Court is similarly not convinced at
this juncture.
As noted by Zabic in the Second Motion to Remand: “Just
as with the Plaintiff’s initial $150,000 demand, however,
the

increased

supporting

demand

of

documentation

$2
or

million

tangible

also

contains

supporting

proof

no
–

there still are no medical bills; there still has been no

9

hospitalization; there still are no wage loss claims; there
still have been no surgeries; and there still is no future
surgical recommendation.” (Doc. # 21 at 6).
A

number

of

federal

courts,

including

the

present

Court, have held that settlement offers do not automatically
establish

the

amount

in

controversy

for

purposes

of

diversity jurisdiction. 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. 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
letter

amount
is

in

nothing

10

controversy
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 increased
demand for $2 million reflects mere posturing rather than a
reasonable assessment of the value of her claim based on
particular facts. The Second Demand Letter is very brief and
adds

no

additional

facts,

other

than

Zabic’s

counsel’s

statement that Zabic considered suicide when she learned
that her photos had been compromised.
counsel’s

admission

that

he

intends

Similarly, Zabic’s
to

seek

damages

on

behalf of his client in an amount over $75,000 does little
to aid the Court in making a jurisdictional inquiry.1
Neither the Second Demand Letter nor the First Motion
to

Remand

describe

damages

for

lost

wages,

medical

treatment, hospitalization, or any concrete loss sustained
by Zabic. Compare Mick v. De Vilbliss Air Power Co., No.
6:10-cv-1390-Orl-28GRK, 2010 WL 5140849 (M.D. Fla. Dec. 14,

1

  Defendants filed a Notice of Supplemental Authority on
December 17, 2015, reflecting that Zabic’s counsel’s stated in
a Rule 26, Fed. R. Civ. P., initial disclosure that “Plaintiff
seeks in excess of $1,000,000.00" (Doc. # 37 at 1).
This
isolated statement, untethered to supporting facts, does not
preponderate in favor of finding that the jurisdictional
threshold has been placed in issue.

11

2010)(demand letter including medical bills, described lost
wages, and explained that a future surgery was required);
Lutins v. State Farm Mut. Auto. Ins., No. 3:10-cv-817-J99MCR,

2010

2010)(demand

WL

6790537,

letter

listed

at

*2

(M.D.

Fla.

bills

and

medical

Nov.

4,

calculated

future medical expenses such that “the hard medical costs
detailed

in

the

letter

sufficiently

prove

the

requisite

amount in controversy”).
Defendants rely on cases in which courts have found
that demand letters satisfied the jurisdictional threshold,
but those cases are readily distinguishable.

To begin, the

Court

death

finds

that

Defendants’

wrongful

cases,

Dominguez v. Peek, No. 09-cv-842, 2010 WL 1658550 (S.D. Ala.
Apr. 16, 2010), Roe v. Michelin North America, Inc., 637 F.
Supp. 2d 995 (N.D. Ala. 2009), and McPhail v. Deere & Co.,
529

F.3d

947

(10th

Cir.

unpersuasive, and inapposite.

2008),

are

not

binding,

Without commenting on the

merits of Zabic’s case, and using nothing more than common
sense, the Court finds that Zabic’s alleged injuries are not
even remotely akin to those stemming from the loss of human
life as was the case in Dominguez, Roe, and McPhail.

12

Defendants’ reliance on Wilt v. Depositors Insurance
Company, No. 6:13-cv-1502-Orl-36KRS, 2013 WL 6195768 (M.D.
Fla. Nov. 26, 2013), and Cowan v. Genesco, Inc., No. 3:14cv-261-J-34JRK, 2014 WL 3417656 (M.D. Fla. July 14, 2014),
is also unavailing.

In Wilt, the court denied a motion to

remand after reviewing factually detailed demand letters and
other

evidence

injury,

the

describing

outlay

of

a

severe

substantial

and

permanent

medical

head

expenses

for

hospitalization, lost wages, and the loss of a vehicle.
2013 WL 6195768, at *3. Similarly, in Cowan, plaintiff’s
request

for

an

order

of

remand

was

denied

because

plaintiff’s claim for back wages alone was valued at “almost
$45,000” and plaintiff sought other categories of damages as
well

as

3417656,

statutorily
at

*4.

authorized

Zabic’s

attorney’s

Second

Demand

fees.

Letter

2014

and

WL

First

Motion to Remand, upon which Defendants removed the case, do
not

contain

similar

support

regarding

the

amount

in

controversy. “A demand letter devoid of facts enabling the
receiver to evaluate the claim may be considered nothing
more than mere posturing.” Mick, 2010 WL 5140849, at *2.
Finally, while the Court is certainly bound by the
Eleventh

Circuit’s

rulings,

its

13

decision

in

McDaniel

v.

Fifth Third Bank, 568 F. App’x 729 (11th Cir. 2014), is
distinguishable from the facts presented here. In McDaniel,
the Eleventh Circuit reversed the trial court’s remand of a
class action case regarding allegedly illegal bank fees in
excess of $2.4 million.

The mistake made by the trial court

was its “refus[al] to consider the amount of damages flowing
from McDaniel’s fraud claims based on its determination that
those

claims

failed

as

a

matter

of

law.”

Id.

at

730.

McDaniel sought compensatory damages for the entire amount
of

the

bank

fees

($2,488,335),

the

maximum

amount

of

compensatory damages available under the Florida Consumer
Collection Practices Act ($501,000), and punitive damages of
$1,503,000. Id. at 731-32. The Eleventh Circuit held that
“these

claims

establish

that

[the

Class

Action

Fairness

Act’s] amount in controversy requirement has been met.” Id.
at 732.

In contrast, Zabic has not pursued class relief and

does not bring a claim involving readily calculable damages,
such as the imposition of a bank fee.
From the inception of this case, Zabic’s counsel has
maintained that: “This is not a claim in which the loss and
damages suffered by Ms. Zabic can be quantified with any
degree of precision.” (Doc. # 13-1 at 23).

14

Zabic’s Second

Demand Letter, seeking $2 million, fails to explain how
Zabic

arrived

at

this

figure

and

does

not

provide

a

discussion of the economic or non-economic damages she may
be seeking with any particularity.
That Zabic offered to settle her case for more than
$75,000

does

evidence

not

that

establish

the

amount

by

in

a

preponderance

controversy

of

the

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).

Likewise, Zabic’s counsel’s statement that he intends to
seek damages in excess of $75,000 (made in the First Motion
to Remand) and statement that he seeks damages in excess of
$1 million (made in a Rule 26 Initial Disclosure) do not
provide

a

basis

for

finding

that

the

jurisdictional

threshold has been satisfied by the preponderance of the
evidence.

Similar to the First and Second Demand Letters,

the statements made in the Motion to Remand and Initial
Disclosures are not tied to any concrete factual allegations
regarding

Zabic’s

alleged

damages

and

constitute

mere

puffing and posturing.
“[R]emoval

statutes

are

construed

narrowly”

and

“uncertainties are resolved in favor of remand.” Burns v.

15

Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994).
Consistent

with

the

foregoing,

the

Court

finds

that

Defendants have once again failed to prove that the amount
in

controversy

exceeds

$75,000.

Consequently,

the

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.”).
V.

Fees and Costs
Zabic requests an award of costs and attorneys’ fees,

pursuant to 28 U.S.C. § 1447(c), which provides that when a
court

remands

attorneys’
However,

a

fees
the

case,

the

incurred

award

of

completely discretionary.

court

as

a

costs

may

result
and

award
of

costs

the

attorneys’

and

removal.
fees

is

See Publix Supermarkets, Inc. v.

United Food & Commercial Workers Int’l Union, AFL-CIO & CLC,
900 F. Supp. 419, 421 (M.D. Fla. 1995)(citation omitted).
In the case at bar, this Court denies Zabic’s request
for

costs

and

attorneys’

fees.

Defendants

had

an

objectively reasonable, but ultimately unsuccessful, basis
for

removing

this

action

(on

16

both

occasions).

Thus,

although the Court has determined that it is appropriate to
remand the case for a second time, the Court does not find
that an award of costs and attorneys’ fees is warranted.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Zabic’s Second Motion to Remand and Motion for Award of
Attorneys’ Fees and Costs (Doc. # 21) is GRANTED to the
extent

that

this

case

is

remanded

to

state

court

pursuant to 28 U.S.C. § 1447(c), because this Court
lacks subject matter jurisdiction.
(2)

Zabic’s request for fees and costs for improper removal
is DENIED.

(3)

After remand has been effected, the Clerk shall CLOSE
THIS CASE.
DONE and ORDERED in Chambers, in Tampa, Florida, this

19th day of December, 2015.

17