McCamant v. Southern Foodservice Management, Inc.

Filing 16

ORDER: The Clerk is directed to remand this case to the Sixth Judicial Circuit, in and for Pinellas County, Florida. The Clerk is further directed to terminate any previously scheduled deadlines and hearings, and thereafter close this case. Signed by Judge Virginia M. Hernandez Covington on 3/17/2017. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
KARI MCCAMANT,
Plaintiff,
v.

Case No. 8:17-cv-453-T-33AAS

SOUTHERN FOODSERVICE
MANAGEMENT, INC.,
Defendant.
_____________________________/
ORDER
This matter comes before the Court sua sponte. This
action was removed to this Court from the Sixth Judicial
Circuit, in and for Pinellas County, Florida, on February 23,
2017, on the basis of diversity jurisdiction. (Doc. # 1). For
the reasons that follow, the Court determines that it lacks
subject matter jurisdiction over this action and remands this
case to state court.
I.

Background
Plaintiff

McCamant

worked

for

Defendant

Southern

Foodservice Management, Inc., as an assistant manager. (Doc.
# 2 at 2). McCamant’s salary was $35,000 per year. (Id.).
According to McCamant, she complained to her supervisors
about her manager “treating Caucasian employees differently
than he treated Hispanic employees.” (Id. at 3). McCamant
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also reported safety concerns, including wet floors and the
use of expired foods. (Id. at 5). Because of her disclosures,
McCamant was retaliated against and ultimately terminated by
Southern Foodservice. (Id.).
McCamant initiated this action in state court on June
26, 2016, alleging retaliation under the Florida Civil Rights
Act and the Florida Private Whistleblower Act. (Doc. # 2).
The

Complaint

compensatory

seeks
damages,

an

award

back

pay

of,

among

and

other

benefits,

things,
punitive

damages, injunctive relief, and attorney’s fees. (Id. at 4,
6).
On November 21, 2016, Southern Foodservice served its
second request for admission on McCamant, to which McCamant
failed to respond. (Doc. # 1 at 2). Southern Foodservice then
moved for the request for admission to be deemed admitted.
(Id.). On February 3, 2017, the state court granted the motion
in part, stating that the request for admission would be
deemed admitted if McCamant did not respond by February 15,
2017. (Id.). McCamant still did not respond to the request
for admission, and Southern Foodservice thereafter removed to
this Court on February 23, 2017. (Id.).

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II.

Subject Matter Jurisdiction
Before delving into the merits of any case, this Court

must determine “whether subject-matter jurisdiction exists,
even in the absence of a challenge from any party.” Arbaugh
v. Y & H Corp., 546 U.S. 500, 514 (2006). Indeed, “it is well
settled that a federal court is obligated to inquire into
subject matter jurisdiction sua sponte whenever it may be
lacking.” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405,
410 (11th Cir. 1999). “Without jurisdiction the court cannot
proceed at all in any cause.” Id.
In removed cases, 28 U.S.C. § 1447(c) specifies, “If at
any time before final judgment it appears that the district
court lacks subject matter jurisdiction, the case shall be
remanded.” Removal statutes are strictly construed against
removal. Shamrock Oil & Gas Co. v. Sheets, 313 U.S. 100, 108
(1941). Any doubt as to propriety of removal should be
resolved in favor of remand to state court. Butler v. Polk,
592 F.2d 1293, 1296 (5th Cir. 1979).
III. Analysis
Southern Foodservice removed this action under 28 U.S.C.
§ 1446(b)(3), which governs removal after receipt from the
plaintiff of an “other paper” demonstrating the existence of
federal jurisdiction. A defendant removing under this prong
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of

§

1446

cannot

establish

the

existence

of

federal

jurisdiction without proving facts. Lowery v. Ala. Power Co.,
483 F.3d 1184, 1215 (11th Cir. 2007).
The

Complaint

does

not

state

a

specified

claim

to

damages. (Doc. # 2 at ¶ 1)(stating “[t]his is an action for
damages in excess of $15,000.00”); see also Lowery, 483 F.3d
at 1208 (noting that when “damages are unspecified, the
removing

party

bears

the

burden

of

establishing

the

jurisdictional amount by a preponderance of the evidence”).
Instead, in

its notice of removal (Doc. # 1),

Southern

Foodservice relies on a request for admission, to which
McCamant failed to respond and was thus deemed admitted. The
request for admission states: “Admit that you are seeking to
recover from Defendant in this lawsuit damages of more than
$75,000, exclusive of interest and costs, and up to the
maximum amount allowed under Florida law.” (Doc. # 1-2 at 3).
Such

a

generic

admission

does

not

satisfy

Southern

Foodservice’s burden. See Bienvenue v. Wal-Mart Stores, East,
LP, No. 8:13-cv-1331-T-33TGW, 2013 WL 5912096 (M.D. Fla. June
19, 2013)(“Bienvenue’s generic admission ‘that Plaintiff is
alleging damages in excess of $75,000’ [] does not satisfy
Wal-Mart’s burden. Bienvenue’s admission does nothing more
than state a legal conclusion and enjoys no factual support
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in the Notice of Removal or the Amended Complaint.”). The
Court in Parrish v. Sears, Roebuck and Co., No. 8:10-cv-1684T-23MAP, 2010 WL 3042230 (M.D. Fla. July 30, 2010), remanded
a slip and fall action after explaining:
[N]either the notice of removal nor the complaint
[] provide any underlying fact supporting the
conclusion that the plaintiff suffered damages in
excess of the jurisdictional amount. The sole
evidence of the jurisdictional amount is an
unsupported and speculative response to a request
for admissions. Although the admission qualifies as
an “other paper” under 28 U.S.C. § 1446(b) and
activates the thirty-day removal limitation, the
admission, which is a mere conclusion, (1) provides
no factual basis to support the jurisdictional
amount (that is, provides no basis for the damages
claimed) and (2) fails to relieve the removing
party of the obligation to establish facts
supporting the existence of federal jurisdiction.
Id. at *1 (M.D. Fla. July 30, 2010). Here, too, there is an
“other paper” — the request for admission that was deemed
admitted after McCamant failed to respond pursuant to the
state court’s order. But, like the admission in Parrish,
McCamant’s admission does not provide a factual basis for its
assertion that the amount-in-controversy exceeds $75,000.
Southern Foodservice cites Enterline v. Sears, Roebuck & Co.,
No. 2:08-cv-221-FtM-29DNF, 2008 WL 1766911 (M.D. Fla. Apr.
15, 2008), to support that removal on the basis of the
admission is proper. But, while other courts may consider a
request for admission sufficient factual support for removal,

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this Court disagrees. Thus, the bare admission cannot satisfy
Southern Foodservice’s burden.
This is an employment discrimination and whistleblower
case, in which McCamant alleged that her salary had been only
$35,000. (Doc. # 2 at 2). Her vague allegations that she has
incurred damages in the form of compensatory damages, back
pay and benefits, punitive damages, and attorney’s fees, do
not convince the Court that McCamant’s damages exceed the
amount-in-controversy threshold. Southern Foodservice has not
provided any other evidence that the amount-in-controversy
requirement has been met. Rather, a review of the state court
record

reveals

that

McCamant’s

answers

to

Southern

Foodservice’s first request for admissions explicitly denied
that

the

amount-in-controversy

requirement

was

met:

“Plaintiff is seeking economic damages which are calculable
and quantifiable and less than $75,000.” (Doc. # 1-1 at 80).
Based on the record before it, the Court is not convinced
the amount-in-controversy requirement has been satisfied.
Therefore, Southern Foodservice has failed to satisfy its
burden to establish that the amount-in-controversy exceeds
$75,000 and the case should be remanded.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
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(1)

The Clerk is directed to REMAND this case to the Sixth
Judicial Circuit, in and for Pinellas County, Florida.

(2)

The

Clerk

previously

is

further

scheduled

directed

deadlines

to

terminate

any

and

hearings,

and

thereafter CLOSE THIS CASE.
DONE and ORDERED in Chambers in Tampa, Florida, this
17th day of March, 2017.

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