Gallon v. Harbor Freight Tools USA, Inc.
Filing
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ORDER granting 6 Motion to Remand to State Court. The Clerk is directed to remand this case to state court and then to close this case. Signed by Judge Susan C Bucklew on 4/7/2017. (GAG)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
BENJAMIN GALLON,
Plaintiff,
v.
Case No. 8:17-cv-520-T-24 MAP
HARBOR FREIGHT TOOLS USA, INC.,
Defendant.
_________________________________/
ORDER
This cause comes before the Court on Plaintiff’s motion to remand (Doc. 6) and
Defendant’s response thereto (Doc. 11). When, as here, the complaint seeks an indeterminate
amount of damages, the defendant seeking removal based on diversity jurisdiction must prove
that the amount in controversy exceeds $75,000 by a preponderance of the evidence. The
evidence presented by Defendant, including a pre-suit demand for less than the jurisdictional
amount, does not satisfy this burden. Accordingly, the Court remands this action to state court
for lack of subject matter jurisdiction.
I.
Background
Plaintiff initiated this personal injury action in state court on December 12, 2016. In the
complaint, Plaintiff alleges that he was injured when an all-terrain vehicle winch cable purchased
from Defendant snapped and struck Plaintiff on his neck and back. (Doc. 2). Specifically,
Plaintiff alleges that he suffered “injuries including scarring” as well as “great bodily injury,
resulting pain and suffering, disability, disfigurement, mental anguish and loss of capacity for
enjoyment of life, aggravation of a pre-existing condition, expense of hospitalization, medical
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and nursing care and treatment, and loss of earnings and earning capacity.” (Id. at ¶¶ 7, 14, 26).
The complaint states that damages exceed $15,000, the jurisdictional minimum to be in Florida
circuit court, but it provides no further specificity. (Id. at ¶ 3).
Defendant’s notice of removal is premised on diversity jurisdiction pursuant to 28 U.S.C.
§ 1332. (Doc. 1). Because Defendant did not provide any basis for its claim that the amount in
controversy exceeded $75,000, the Court ordered Defendant to supplement its notice of removal
with evidence supporting this assertion. (Doc. 3). In its supplement, Defendant notes that
Plaintiff alleges “great bodily injury, resulting pain and suffering, disability, disfigurement,
mental anguish, and loss of the capacity for enjoyment of life” in his complaint. (Doc. 5).
Defendant further states that in addition to these intangible damages, Plaintiff’s complaint
includes a claim for loss of future income. (Id.). Attached to Defendant’s supplement are
portions of Plaintiff’s pre-suit demand package including medical records and bids for jobs that
Plaintiff allegedly took but was unable to complete due to his injuries. (Doc. 7). 1 The demand
package states that Plaintiff suffered a minor traumatic brain injury and scarring as a result of the
incident and is “suffering from headaches, insomnia, irritability, and anxiety.” (Id. at 5). It is
further indicated that Plaintiff suffered $10,584.93 in medical expenses and $7,557.55 in lost
wages. (Id.). All of this, according to Defendant, establishes that Plaintiff is seeking in excess of
$75,000. What Defendant conveniently fails to mention, however, is that the demand itself is for
only $50,000. (Id.).
1
The demand package can be found attached to Plaintiff’s Notice of Filing Amended Exhibit (Doc. 7).
2
Plaintiff now seeks to remand this action to state court, arguing that Defendant has not
met its burden of establishing that the amount in controversy exceeds the $75,000 jurisdictional
threshold. (Doc. 6). There is no dispute that complete diversity exists.
II.
Legal Standard
Under 28 U.S.C. § 1441(a), a defendant can remove an action to a United States district
court if that court had original jurisdiction over the action. District courts have original
jurisdiction over all civil actions between parties of diverse citizenship where the amount in
controversy exceeds $75,000. 28 U.S.C. § 1332. When, as here, “the jurisdictional amount is not
facially apparent from the complaint, the court should look to the notice of removal,” along with
other relevant evidence. Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir. 2001). The
Eleventh Circuit has “repeatedly held that the removing party bears the burden of proof to
establish by a preponderance of the evidence that the amount in controversy exceeds the
jurisdictional minimum.” Dudley v. Eli Lilly & Co., 778 F.3d 909, 913 (11th Cir. 2014) (citations
omitted); see also Roe v. Michelin N. Am., Inc., 613 F.3d 1058, 1061 (11th Cir. 2010) (“If a
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 amount.” (citations and internal quotation marks omitted)). 2
2
In its supplement to the notice of removal, Defendant, citing Dart Cherokee Basin Operating Co., LLC v. Owens,
___ U.S.___, 135 S. Ct. 547 (2014), asserts that its notice of removal must only plausibly allege that the
jurisdictional amount in controversy is met, not prove the amount. This is incorrect. The Supreme Court recognized
in Dart that when the plaintiff contests the defendant’s amount in controversy—as is the case here—the district
court must find “‘by the preponderance of the evidence, that the amount in controversy exceeds’ the jurisdictional
threshold.” Id. at 553 (quoting 28 U.S.C. § 1446(c)(2)(B)). In its response to the motion to remand, Defendant
appears to concede that the preponderance of the evidence standard applies. (Doc. 11 at p. 2).
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On the other hand, “a removing defendant is not required to prove the amount in
controversy beyond all doubt or banish all uncertainty about it.” Pretka v. Kolter City Plaza II,
Inc., 608 F.3d 744, 754 (11th Cir. 2010). “[A] court may rely on evidence put forward by the
removing defendant, as well as reasonable inferences and deductions drawn from that evidence.”
Dudley, 778 F.3d at 913 (quoting S. Fla. Wellness, Inc. v. Allstate Ins. Co., 745 F.3d 1312, 1315
(11th Cir. 2014)). However, “[c]onclusory allegations are insufficient to establish the amount in
controversy.” Green v. Travelers Indem. Co., No. 3:11-cv-922-J-37TEM, 2011 WL 4947499, at
*3 (M.D. Fla. Oct. 18, 2011). And “removal statutes are construed narrowly” with “uncertainties
[] resolved in favor of remand.” Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994).
III.
Motion to Remand
In response to Plaintiff’s motion to remand, Defendant argues that the requisite amount in
controversy is established because: 1) the demand package describes extensive symptoms
associated with a head injury, concussion, and mild traumatic brain injury; 2) jury verdicts and
settlements in other mild traumatic brain injury cases exceed $75,000; and 3) Plaintiff has
refused to state clearly that the amount in controversy does not exceed $75,000. (Doc. 11). The
Court finds this evidence insufficient to satisfy Defendant’s burden.
First, Defendant relies upon Plaintiff’s pre-suit demand package to establish that the
amount in controversy exceeds $75,000. Settlement offers are relevant, but not determinative, of
the amount in controversy. 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) (citing Burns, 31 F.3d at 1097). On its face, the
demand package fails to establish the amount in controversy because Plaintiff demands $50,000,
which is less than the jurisdictional amount, and it substantiates just $10,584.93 in past medical
expenses and $7,557.55 in past lost wages.
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In spite of this, Defendant urges the Court to instead focus on Plaintiff’s allegations of
permanent and continuing traumatic brain injury and physical injuries sufficient to interfere with
Plaintiff’s ability to earn income. Defendant points out that the demand package indicates that
Plaintiff’s “job is extremely physically demanding and since the accident [Plaintiff] has been
unable to fulfill the physical requirements of his job.” Defendant essentially argues that
notwithstanding the fact that the demand is for $50,000 and substantiates only $18,142.48 in
damages, the amount in controversy is satisfied because Plaintiff alleges a serious injury and is
seeking damages for loss of future income.
But “mere allegations of severe injuries are insufficient to establish the amount in
controversy.” Green, 2011 WL 4947499, at *3 (citations omitted). There is no information from
which the Court can estimate the amount of any future medical expenses or future loss of
income. And the Court will not speculate regarding the value of these claims or the value of any
claims for pain and suffering. See Nelson v. Black & Decker (U.S.), Inc., 8:16-cv-869-T-24JSS,
2015 WL 12259228, at *3 (M.D. Fla. Aug. 30, 2016). The allegations of serious injury and loss
of future income in the demand package, without evidence as to the value of these claims, are
simply not enough to establish the jurisdictional amount by a preponderance of the evidence—
especially given that the demand itself is for less than the jurisdictional threshold. In fact, in a
case like this, in which the relied-upon demand substantiates less than $20,000 in past damages
and there are only conclusory allegations of future damages, the Court would be hard pressed to
find that the amount in controversy was satisfied even if the demand itself were for more than the
jurisdictional amount. See Ashmeade v. Farmers Ins. Exchange, 5:15-cv-533-OC-34PRL, 2016
WL 1743457, at *2 (M.D. Fla. May 3, 2016) (“[I]f the demand is made prior to suit, a court may
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refuse to credit the sum demanded if it does not correlate [to] the plaintiff’s damages.”) (citations
omitted).
Moreover, the Court is not convinced that the jury verdicts and settlements provided by
Defendant regarding similar injuries shed any light on the amount in controversy in this case.
Indeed, the Eleventh Circuit has questioned whether such evidence “is ever of much use in
establishing the value of claims in any one particular suit.” Lowery v. Ala. Power Co., 483 F.3d
1184, 1121 (11th Cir. 2007); see also Federated Mut. Ins. Co. v. McKinnon Motors, LLC, 329
F.3d 805, 809 (11th Cir. 2003) (stating that “mere citation to what has happened in the past
[referring to awards in other cases] does nothing to overcome the indeterminate and speculative
nature of [the defendant’s] assertion [of the amount in controversy] in this case”). Although these
jury verdicts and settlements involve mild traumatic brain injuries, it is impossible for the Court
to determine how similar this action is to those Defendant cites. Even taking these jury verdicts
and settlements into account, the Court would need to engage in improper speculation in order to
find that the amount in controversy in this case is satisfied.
Lastly, Defendant argues that the Court should consider Plaintiff’s refusal to admit that
the value of his claims does not meet the jurisdiction threshold in assessing the amount in
controversy. Defendant is correct that this type of evidence may be considered. See Morock v.
Chautauqua Airlines, Inc., 8:07-cv-00210-T17MAP, 2007 WL 1725232, at *2 (M.D. Fla. June
14, 2007). But this does not change the fact that it is Defendant’s burden to show, by a
preponderance of the evidence, that the amount in controversy is satisfied. Even considering this
evidence in conjunction with the demand package and the jury verdicts, Defendant has not
satisfied that burden.
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IV.
Defendant’s Request for Limit Discovery
Defendant requests, in the alternative, limited discovery related solely to the
jurisdictional amount in controversy. While a court may permit parties to conduct jurisdictional
discovery to determine whether diversity jurisdiction exists, see Donovan v. Liberty Mut. Ins.
Co., 6:16-cv-157-Orl-22TBS, 2016 WL 890086, at *2 (M.D. Fla. March 3, 2016) (citing Bennett
v. USA Water Polo, Inc., No. 08-23533-CIV, 2009 WL 1089480, at *1 (S.D. Fla. April 21,
2009)), the Court declines to do so in this in case. Such jurisdictional discovery is improper
where, as here, Defendant offers only speculation and conclusory allegations concerning subject
matter jurisdiction. Donovan, 2016 WL 890086, at *2 (citing Viasystems, Inc. v. EBM-Pabst St.
Georgen GMBH & Co., 646 F.3d 589, 598 (8th Cir. 2011)). Accordingly, the Court will exercise
its discretion to deny jurisdictional discovery.
V.
Conclusion
Accordingly, it is hereby ORDERED AND ADJUDGED that Plaintiff’s motion to
remand (Doc. 6) is GRANTED. The Clerk is directed to remand this case to state court and then
to close this case.
DONE and ORDERED at Tampa, Florida, this 7th day of April, 2017.
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