Terrell v. Ascenda USA Inc.

Filing 4

ORDER: This action is remanded under 28 U.S.C § 1447(c) for lack of subject matter jurisdiction. The Clerk is directed to remand this action to state court. After remand has been effected, the Clerk shall close this case. Signed by Judge Virginia M. Hernandez Covington on 7/8/2016. (DRW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
AUTUMN TERRELL,
Plaintiff,
v.

Case No. 8:16-cv-1965-T-33MAP

ASCENDA USA INC.,
Defendant.
_____________________________/
ORDER
This matter comes before the Court sua sponte. On July
7, 2016, Defendant Ascenda USA Inc. filed its Notice of
Removal. (Doc. # 1). For the reasons stated herein, the Court
determines remand is appropriate.
I.

Background
Ascenda hired Plaintiff Autumn Terrell as a customer

service representative on June 12, 2014. (Doc. # 2 at ¶ 11).
Terrell

suffers

from

a

qualifying

disability

under

the

Florida Civil Rights Act, Fla. Stat. § 760.01 et seq., and
requested an accommodation in May of 2015. (Id. at ¶¶ 12,
15). Ascenda denied Terrell’s requested accommodation and
between May and June of 2015, Ascenda disciplined Terrell for
“missing

work

on

account

of

her

handicap,

even

though

Plaintiff informed Defendant of these absences in advance,

and submitted medical documentation to Defendant in support
of each absence.” (Id. at ¶¶ 17, 20). Ascenda allegedly also
allowed information regarding Terrell’s disability to be
disseminated throughout the facility at which Terrell worked.
(Id. at ¶ 21). Furthermore, Ascenda allegedly retaliated
against Terrell for engaging in protected activity under the
Florida Civil Rights Act by terminating her on June 22, 2015.
(Id. at ¶ 24).
Terrell

subsequently

instituted

an

action

against

Ascenda by filing a complaint in the Sixth Judicial Circuit
in and for Pinellas County, Florida on May 5, 2016. (Doc. #
1 at 1). Terrell’s complaint asserts three counts under the
Florida Civil Rights Act and requests a litany of damages
including lost wages, front pay, compensatory damages for
emotional distress, punitive damages, prejudgment interest
and attorney’s fees and costs. (Doc. # 2 at 4-5, 7). However,
the amount in controversy is only alleged in a generic fashion
as being “in excess of $15,000.” (Id. at ¶ 1). Ascenda removed
to this Court on the basis of diversity jurisdiction.
II.

Analysis
“Federal courts have limited subject matter jurisdiction

. . . .” Morrison v. Allstate Indem. Co., 228 F.3d 1255, 126061 (11th Cir. 2000). As such, “[a] federal court not only has

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the power but also the obligation at any time to inquire into
jurisdiction whenever the possibility that jurisdiction does
not exist arises.” Fitzgerald v. Seaboard Sys. R.R., Inc.,
760 F.2d 1249, 1251 (11th Cir. 1985) (per curiam).
When

jurisdiction

is

premised

upon

diversity

of

citizenship, 28 U.S.C. § 1332(a) requires that “the matter in
controversy exceeds the sum or value of $75,000, exclusive of
interest and costs.” When “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). And, 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).
A.

Lost Wages

Ascenda calculates lost wages as two years of back pay
(one year of pre-removal and one year of post-removal back
pay), plus one year of front pay. (Doc. # 1 at 5). There are
two flaws with Ascenda’s calculation, however. First, the
amount in controversy is determined at the time of removal
and thus does not include post-removal back pay. Williams,

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269 F.3d at 1319; Bragg v. Suntrust Bank, No. 8:16-cv-139-T33TBM, 2016 WL 836692, at *2 (M.D. Fla. Mar. 4, 2016) (citing
Davis v. Tampa Ship, LLC, No. 8:14-cv-651-T-23MAP, 2014 WL
2441900, at *2 (M.D. Fla. May 30, 2014)). Second, “speculation
regarding front pay cannot be used to supplement insufficient
back

pay

for

the

purpose

of

meeting

the

jurisdictional

requirement.” Id. (citing Snead v. AAR Mfg., Inc., No. 8:09cv-1733-T-30EAJ, 2009 WL 3242013, at *2-3 (M.D. Fla. Oct. 6,
2009)).
Therefore, the amount in controversy for lost wages is
properly calculated as wages per week multiplied by the number
of weeks from the date of termination to the date of removal.
Ascenda

provided

evidence

establishing

Terrell

earned

approximately $360 per week (Doc. # 1-2 at 35), and 54.43
weeks elapsed between Terrell’s termination and the date of
removal. As such, the amount of back pay equals $19,594.80.
B.

Compensatory Damages

Ascenda

further

postulates

Terrell’s

compensatory

damages claim is sufficient to meet the amount in controversy
threshold because courts have awarded amounts in excess of
the $75,000 threshold for emotional distress claims. (Doc. #
1 at 5). Ascenda also relies on Estevez-Gonzalez v. Kraft,
Inc.,

606

F.

Supp.

127,

129

4 

(S.D.

Fla.

1985),

for

the

proposition that a complaint alleging physical and mental
pain meets the amount in controversy requirement. (Doc. # 1
at 6). Notably though, at the time Estevez-Gonzalez was
decided, the amount in controversy requirement was a mere
$10,000. See 606 F. Supp. at 129. In stark contrast, the
amount in controversy requirement today is $75,000, 28 U.S.C.
§ 1332(a), and Ascenda provides nothing in support of its
contention that Terrell’s claim to compensatory damages could
exceed today’s jurisdictional threshold. As such, Terrell’s
claim for compensatory damages is too speculative to support
a finding that the $75,000 threshold has been satisfied. See
Boyd v. N. Tr. Co., No. 8:15-cv-2928-T-33TBM, 2016 WL 640529,
at *4 (M.D. Fla. Feb. 18, 2016) (finding compensatory damages
too speculative to base jurisdiction upon because neither
party presented evidence regarding an estimation of those
damages).
C.

Punitive Damages

Ascenda

correctly

notes

Terrell

requests

punitive

damages and the Florida Civil Rights Act provides for up to
$100,000 in such damages. A court must consider punitive
damages in its jurisdictional analysis “unless it is apparent
to a legal certainty that such cannot be recovered.” Holley
Equip. Co. v. Credit Alliance Corp., 821 F.2d 1531, 1535 (11th

5 

Cir. 1987). Relying on Ryan v. State Farm Auto Ins. Co., 934
F.2d 276, 277 (11th Cir. 1991), Ascenda argues Terrell’s
request for punitive damages is sufficient to meet the amount
in controversy requirement because the Florida Civil Rights
Act caps punitive damages at $100,000. (Doc. # 1 at 6). A key
distinction between Ryan and the instant action, however, is
that the plaintiff in Ryan requested a specific amount in
punitive

damages,

whereas

in

this

case

the

request

is

nonspecific.
Furthermore, a similar argument was rejected by the
court in Boyd. In that case, the removing defendant argued
the

plaintiff’s

request

for

punitive

damages

under

the

Florida Civil Rights Act was sufficient to meet the amount in
controversy

requirement.

2016

WL

640529,

at

*4.

The

defendant, however, did not provide jurisdictional facts that
affirmatively established punitive damages were at play. Id.
Rather, the defendant merely pointed to the fact the plaintiff
requested

punitive

damages.

Id.

Likewise,

rather

than

providing jurisdictional facts to affirmatively show punitive
damages are at play here, Ascenda only points to the fact
Terrell requests punitive damages.
D.

Attorney’s Fees

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Although the Florida Civil Rights Act grants the Court
discretion

to

award

reasonable

attorney’s

fees

to

a

prevailing party, the record is devoid of any information
relating to how much Terrell has expended on attorney’s fees
as of the date of removal. Without such information, the Court
has nothing to factor into its calculus. See Id.
III. Conclusion
Ascenda, as the removing party, has not shown by a
preponderance of the evidence that the amount in controversy
exceeds $75,000. And, “[i]f at any time before final judgment
it appears that the district court lacks subject matter
jurisdiction,

the

case

shall

be

remanded.”

28

U.S.C.

§

1447(c). Therefore, the Court remands this action.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
This action is remanded under 28 U.S.C § 1447(c) for
lack of subject matter jurisdiction. The Clerk is directed to
remand this action to state court. After remand has been
effected, the Clerk shall close this case.
DONE and ORDERED in Chambers in Tampa, Florida, this 8th
day of July, 2016.

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