Desai v. Mahmood

Filing 10

ORDER: The Clerk is directed to REMAND this case to the Sixth Judicial Circuit, in and for Pinellas County, Florida, pursuant to 28 U.S.C. § 1447(c) because this Court lacks subject matter jurisdiction. After remand has been effected, the Clerk shall CLOSE THE CASE. Signed by Judge Virginia M. Hernandez Covington on 7/6/2016. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
AKSHAY M. DESAI,
Plaintiff,
v.

Case No. 8:16-cv-1929-T-33AAS

KASSIM ALY MAHMOOD,
Defendant.
/
ORDER
This cause comes before the Court sua sponte. For the
reasons that follow, the Court remands this action to the
Sixth Judicial Circuit, in and for Pinellas County, Florida
pursuant to 28 U.S.C. § 1447(c) because this Court lacks
subject matter jurisdiction.
Discussion
On June 1, 2016, Plaintiff Akshay Desai, a citizen of
Florida,

filed

a

one

count

complaint

against

Defendant

Kassim Mahmood, a citizen of Minnesota, alleging violation
of Florida’s Security in Communications Act, Fla. Stat. §
934.10.

Specifically,

Desai

contends

that

Mahmood

“surreptitiously recorded one or more conversations with Dr.
Desai to use for his self-interested motivations.” (Doc. # 2
at ¶ 3).

Desai’s Complaint seeks “actual damages” as well

as “prejudgment interest, attorney’s fees and costs, [and]
an

injunction

impermissible

against

Mahmood’s

recording.”

(Id.

further

at

11).

use

Mahmood

of

the

filed

a

Notice of Removal in this Court on July 5, 2016, predicating
the

Court’s

jurisdiction

on

complete

diversity

of

citizenship. (Doc. # 1).
When

jurisdiction

citizenship,

28

is

U.S.C.

§

premised
1332(a)

upon

diversity

requires,

among

of

other

things, that “the matter in controversy exceeds the sum or
value of $75,000, 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). Further, 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).
Desai does not make a specified claim for damages.
(Doc. # 2 at ¶ 8) (generally alleging damages exceeding
$15,000, exclusive of interest, attorneys’ fees and costs).
Mahmood

postulates

in

the

Notice
2

of

Removal

that

he

“believes that a fair reading of the complaint indicates
that the amount in controversy, i.e., the amount Plaintiff
is seeking for actual damages and attorneys’ fees, exceeds
the sum of $75,000 exclusive of interest and costs.” (Doc. #
1 at ¶ 16).
District courts construe removal statutes strictly, but
are nonetheless “permitted to make reasonable deductions and
reasonable inferences and need not suspend reality or shelve
common sense in determining whether the face of a complaint
establishes

the

jurisdictional

amount.”

Keogh

v.

Clarke

Envtl. Mosquito Mgmt., Inc., No. 8:12-cv-2874-T-30EAJ, 2013
U.S.

Dist.

LEXIS

20282,

at

*4-5

(M.D.

Fla.

Jan.

17,

2013)(internal citations omitted). Overall, the record is
devoid of factual allegations to suggest that damages from
the alleged tape-recording incident could possibly exceed
the $75,000.00 amount in controversy threshold.
The Court recognizes that Desai seeks “actual damages,”
but

the

Court

information

has

not

regarding

been

these

supplied
damages

with

such

any

that

relevant
the

Court

could determine that the amount in controversy requirement
is met with any confidence.

The Court declines to engage in

rank speculation to ascribe Desai’s “actual damages” with
any

monetary

value

whatsoever.
3

“The

removal

statute

contemplates a stronger basis for jurisdiction than mere
speculation.” Wozniak v. Dolgencorp, LLC, No. 8:09-cv-2224T-23AEP, 2009 U.S. Dist. LEXIS 113437, at *7

(M.D. Fla.

Nov. 19, 2009).
In

addition,

while

statutory

attorneys’

fees

are

claimed, such fees must be “available, alleged, incurred,
and

proven,”

in

order

to

contribute

to

the

amount

in

controversy. Crowley v. State Farm Mut. Auto. Ins. Co., No.
8:13-cv-632-T-23EAJ, 2013 U.S. Dist. LEXIS 148935, at *5
(M.D. Fla. Oct. 15, 2013).

Mahmood has not provided any

information regarding the amount of fees so far incurred
such that this Court could include attorneys’ fees into the
jurisdictional calculus.
“A removing party (not the court) bears the burden to
establish jurisdiction; a removing party (not the court)
must

find,

identify,

facts.” Id. at *4.

and

prove

pertinent

jurisdictional

In a case such as this, where “plaintiff

makes an unspecified demand for damages in state court, a
removing defendant must prove by a preponderance of the
evidence that the amount in controversy more likely than not
exceeds the

. . . jurisdictional requirement.” Roe v.

Michelin N. Am. Inc., 613 F.3d 1058, 1061 (11th Cir. 2010).
Mahmood falls well short of meeting this burden.
4

The Notice

of Removal simply recites the factual allegations of the
Complaint and takes note that the Desai seeks actual damages
as well as other generic categories of relief.

Mahmood does

not even attempt to describe the amount in controversy or
explain to the Court why the alleged violation of Florida’s
Security

in

Communications

Act

statute

could

exceed

the

$75,000.00 jurisdictional threshold.
The removal of this action underscores the importance
of

the

well-recognized

“presumption

in

favor

of

remand”

because “if a federal court reaches the merits of a pending
motion in a removal case where subject matter may be lacking
it

deprives

a

state

court

of

its

right

under

the

Constitution to resolve controversies in its own courts.”
Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 411 (11th
Cir. 1999). The Court, finding that it lacks subject matter
jurisdiction, remands this case to state court.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

The

Clerk

is

directed

to

REMAND

this

case

to

the

Sixth Judicial Circuit, in and for Pinellas County,
Florida, 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
5

THE CASE.
DONE and ORDERED in Chambers in Tampa, Florida, this
6th day of July, 2016.

6