Avramides v. Genesis Eldercare Rehabilitation Services, LLC

Filing 6

ORDER: This action is remanded under 28 U.S.C. § 1447(c) for lack of federal subject matter jurisdiction. The Clerk is directed to remand this case to state court. After remand has been effected, the Clerk shall CLOSE THIS CASE. Signed by Judge Virginia M. Hernandez Covington on 1/25/2017. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ADAM AVRAMIDES,
Plaintiff,
v.

Case No. 8:17-cv-155-T-33JSS

GENESIS ELDERCARE REHABILITATION
SERVICES, LLC,
Defendant.
_______________________________/
ORDER OF REMAND
This cause comes before the Court pursuant Defendant
Genesis

Eldercare

Rehabilitation

Services,

LLC’s

Second

Notice of Removal, which was filed on January 20, 2017.
(Doc. # 1). For the reasons set forth below, the Court
determines that it lacks subject matter jurisdiction and
accordingly remands the action to state court pursuant to 28
U.S.C. § 1447(c).
I.

Background
Plaintiff Adam Avramides is a physical therapist. (Doc.

# 2 at ¶ 6). Avramides worked for Genesis Eldercare from
2012, until his separation in June of 2016. (Id.). Avramides
objected

to

signing

off

on

patient

notes

at

Genesis

Eldercare when he did not personally examine the patient.
(Id. at ¶ 15).

Thereafter, Avramides’s hours were reduced

and he was terminated on June 26, 2016. (Id. at ¶¶ 17, 19).

On

October

6,

2016,

Avramides

filed

a

one-count

Complaint against Genesis Eldercare pursuant to the antiretaliation provision of the Florida Private Whistleblower’s
Act, Fla. Stat. § 448.102(3), in the Circuit Court of the
Sixth Judicial Circuit for Pasco County, Florida. (Doc. #
2).

Genesis Eldercare effected its initial removal of this

action on November 17, 2016, under case number 8:16-cv-3213T-33AAS, predicating the Court’s exercise of subject matter
jurisdiction on complete diversity of citizenship.
After

scrutinizing

the

Complaint

and

the

Notice

of

Removal, the Court determined that Genesis Eldercare failed
to demonstrate by a preponderance of the evidence that the
amount in controversy requirement was satisfied.

The Court

accordingly remanded the case to state court on November 21,
2016.

In its initial Order of Remand, the Court explained

that, although Genesis Eldercare calculated backpay in the
amount of $95,565.69, the amount of backpay was incorrectly
premised on an anticipated trial date in November of 2017.
The Court rejected Genesis Eldercare’s argument because “the
amount in controversy is determined at the time of removal
and thus does not include post-removal back pay.”

2

Terrell

v. Ascenda USA Inc., No. 8:16-cv-1965-T-33MAP, 2016 U.S.
Dist. LEXIS 88781, at *3 (M.D. Fla. July 8, 2016).
In
demand

addition,
for

the

Court

compensatory

determined

damages

was

that

too

Avramides’s

speculative

to

satisfy Genesis Eldercare’s burden at the notice of removal
stage. See Golden v. Dodge-Markham Co., Inc., 1 F. Supp. 2d
1360,

1366

(M.D.

Fla.

1998)(determining

that

the

compensatory damages were too “nebulous” to be considered in
proving,

by

a

preponderance

of

the

evidence,

the

jurisdictional amount). Furthermore, the Court found that
Avramides’s general demand for attorney’s fees and costs,
without

any

information

about

the

actual

amount

sought,

could not satisfy the amount in controversy requirement for
diversity jurisdiction.

The Court underscored that “only

the attorney’s fees accrued to the date of removal can
contribute to the amount in controversy.” Keller v. Jasper
Contractors, Inc., No. 8:15-cv-1773-T-23TBM, 2015 U.S. Dist.
LEXIS 106110, *3 (M.D. Fla. Aug. 12, 2015).

Finally, in

determining that remand was appropriate, the Court warned
that federal jurisdiction is limited, removal statues are
narrowly construed, and all uncertainties are resolved in

3

favor of remand. Burns v. Windsor Ins. Co., 31 F.3d 1092,
1095 (11th Cir. 1994).
At this juncture, Genesis Eldercare has filed a Second
Notice of Removal, this time attempting to establish the
amount

in

controversy

based

requests for admissions.

on

Avramides’s

responses

to

Among other admissions, Avramides

responded “Admit” to the following request: “Admit that the
amount in controversy in this action exceeds the sum or
value of $75,000, exclusive of interest and costs.” (Doc. #
1

at

7).

Likewise,

Avramides

responded

“Deny”

to

the

following request: “Admit that the amount in controversy in
this

action

is

less

than

the

sum

or

exclusive of interest and costs.” (Id.).

value

of

$75,000,

Once again, and as

explained in detail below, the Court sua sponte remands this
action to state court after finding that Genesis Eldercare
failed to demonstrate by the preponderance of the evidence
that the jurisdictional amount is satisfied.
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).
United States District Courts have original jurisdiction

4

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).

Removal is also appropriate when an

amended pleading, motion, or “other paper” establishes that
the jurisdictional requirements are satisfied. 28 U.S.C. §
1446(b)(3).
III. Analysis
As previously stated, the Complaint alleges damages “in
excess” of $15,000 dollars. (Doc. # 2 at ¶ 1). Without any
further specificity on damages, Genesis Eldercare, as the
removing

party,

preponderance

bears

of

the

the

burden

evidence,

of

that

proving,
the

by

amount

a
in

controversy is in excess of $75,000. See Lowery v. Ala.
Power Co., 483 F.3d 1184, 1208 (11th Cir. 2007).

Here,

Genesis Eldercare postulates that Avramides’s admissions and
denials made in response to discovery establish the amount
in controversy.

Such admissions certainly can carry the day

when

detailed

they

are

information.

and

contain

substantive

factual

However, the admissions and denials before the

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Court are devoid of the kind of factual information that is
necessary to make a jurisdictional finding.
The removing defendant bears the burden of establishing
facts that support federal jurisdiction. See Allen v. Toyota
Motor Sales, U.S.A., Inc., 155 Fed. App’x 480, 481 (11th
Cir. 2005).

“A conclusory allegation in the notice of

removal that the jurisdictional amount is satisfied, without
setting

forth

the

underlying

facts

supporting

such

an

assertion, is insufficient to meet the defendant’s burden.”
Williams, 269 F.3d at 1319-20.
As

noted,

responses

to

requests

for

admissions

may

certainly qualify as an “other paper” that can trigger the
thirty-day removal deadline under 28 U.S.C. § 1446(b)(3).
Parrish v. Sears, Roebuck & Co., No. 8:10-cv-1684-T-23MAP,
2010 U.S. Dist. LEXIS 89481, at *3 (M.D. Fla. July 30,
2010)(An “admission qualifies as an ‘other paper’ under 28
U.S.C.

§

1446(b)

limitation.”).

and

But,

activates

the

Avramides’s

thirty-day

responses

are

removal
lacking

because “a plaintiff’s mere concession that the amount-incontroversy

exceeds

$75,000

is

insufficient.”

Eckert

v.

Sears, Roebuck & Co., No. 8:13-cv-2599-T-23EAJ, 2013 U.S.

6

Dist. LEXIS 149561, *3 (M.D. Fla. Oct. 17, 2013).

There,

the court explained:
The court has an obligation to determine that the
requisite jurisdictional amount is satisfied and
that inquiry is independent of the parties’
assertions or desires to litigate in federal
court. Allowing the parties to invoke jurisdiction
by merely claiming in concert that the amount-incontroversy exceeds the jurisdictional requirement
is tantamount to allowing the parties to consent
to
removal
jurisdiction.
Thus,
although
a
plaintiff may stipulate to an amount less than the
jurisdictional minimum to avoid removal, the
converse is not true.
Jurisdiction cannot be
assumed without further inquiry based on the
plaintiff’s stipulation that the plaintiff is
seeking more.
Id.

at

*3-4

(internal

citations

and

quotation

marks

omitted).
Here, as in Eckert, Avramides’s responses to requests
for admissions (1) offer no factual basis to support that
the amount in controversy requirement is satisfied; (2) are
nothing more than legal conclusions; and (3) fail to relieve
the

removing

defendant

of

the

obligation

to

demonstrate

facts supporting the existence of federal subject matter
jurisdiction. Accord Wood v. Wal-Mart Stores, E. LP, No.
8:16-cv-3477-T-33AAS, 2016 U.S. Dist. LEXIS 178524, at *2
(M.D. Fla. Dec. 27, 2016)(remanding slip and fall action
when removal was predicated upon plaintiff’s “admission”

7

that

she

alleged

“jurisdictional

damages

in

objections

excess
cannot

of
be

$75,000

because

forfeited

or

waived.”)(citing Eckert, 2013 U.S. Dist. LEXIS 149561, at
*3); Younkman v. Dillard’s, Inc., No. 2:15-cv-361-FtM-99DNF,
2015 U.S. Dist. LEXIS 99734, at *6 (M.D. Fla. July 30, 2015)
(noting that “a Notice of Removal must plausibly allege the
jurisdictional amount, and the mere refusal to admit that
the amount is less than $75,000 is insufficient.”)(internal
citation omitted); Martinez v. First Liberty Ins. Corp., No.
8:14-cv-3148-T-23AEP, 2015 U.S. Dist. LEXIS 69001, at *3
(M.D. Fla. May 28, 2015)(remanding breach of contract action
when

notice

of

removal

was

predicated

on

plaintiff’s

admission that the amount in controversy exceeded $75,000
and provided no factual basis in support of that legal
conclusion).
Once again, Genesis Eldercare, as the removing party,
has not shown by a preponderance of the evidence that the
amount in controversy plausibly exceeds $75,000. Therefore,
the Court remands the case to state court. See 28 U.S.C. §
1447 (“If at any time before final judgment it appears that
the district court lacks subject matter jurisdiction, the
case shall be remanded.”).

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Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
This action is remanded under 28 U.S.C. § 1447(c) for
lack of federal subject matter jurisdiction. The Clerk is
directed to remand this case to state court. After remand
has been effected, the Clerk shall CLOSE THIS CASE.
DONE and ORDERED in Chambers, in Tampa, Florida, this
25th day of January, 2017.

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