Gallon v. Harbor Freight Tools USA, Inc.

Filing 24

ORDER denying 20 Motion for Attorneys' Fees. Signed by Judge Susan C Bucklew on 5/5/2017. (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 for attorneys’ fees and costs
pursuant to 28 U.S.C. § 1447(c) (Doc. 20) and Defendant’s response thereto (Doc. 22). 1 Upon
review, Plaintiff’s motion for attorneys’ fees is DENIED.
Plaintiff initiated this personal injury action in state court on December 12, 2016, alleging
injuries sustained when an all-terrain vehicle winch cable purchased from Defendant snapped
and struck Plaintiff on his neck and back. (Doc. 2). The complaint alleged that Plaintiff’s
damages exceeded $15,000, the jurisdictional minimum to be in Florida circuit court, but
provided no further specificity. (Doc. 2, ¶ 3). Defendant removed the action to this Court based
on diversity jurisdiction pursuant to 28 U.S.C. § 1332. (Doc. 1). Plaintiff then moved to remand.
(Doc. 6).
In response to Plaintiff’s motion to remand, Defendant argued that the jurisdictional
minimum of $75,000 was satisfied because 1) Plaintiff’s pre-suit demand package, despite

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The Court would note that Plaintiff also filed a reply (Doc. 23) to Defendant’s response without seeking leave of
Court as required by Local Rule 3.01(c). The Court will therefore not consider the arguments made therein.

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demanding only $50,000, described extensive symptoms associated with a head injury,
concussion, and mild traumatic brain injury, including loss of future wages; 2) jury verdicts and
settlements in other mild traumatic brain injury cases exceed $75,000; and 3) Plaintiff refused to
state clearly that the amount in controversy did not exceed $75,000. (Doc. 11). The Court
granted Plaintiff’s motion to remand, finding that Defendant had not satisfied its burden to show,
by a preponderance of the evidence, that the amount in controversy was satisfied. (Doc. 18).
Plaintiff now moves for an award of attorneys’ fees and costs incurred by the Plaintiff in
remanding this action back to state court. Pursuant to 28 U.S.C. § 1447, “[a]n order remanding
the case may require payment of just costs and any actual expenses, including attorney fees,
incurred as a result of the removal.” District courts have discretion to award attorneys’ fees as a
result of the removal “only where the removing party lacked an objectively reasonable basis for
seeking removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005).
The Court would first note that Plaintiff has not made any argument why Defendant’s
removal was objectively unreasonable—Plaintiff merely provided a timeline of the events in this
case and the standard from Martin. In any event, the Court finds that Defendant had an
objectively reasonable, albeit ultimately unsuccessful, basis for removing this action. Despite the
fact that the pre-suit demand letter relied upon by Defendant demanded less than the
jurisdictional amount, it was not objectively unreasonable for Defendant to argue that the claim
for damages exceeded the jurisdictional amount based on the allegations of head injuries and lost
future wages. See 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) (holding that settlement offers are relevant, but not
determinative, of the amount in controversy). While the evidence presented by Defendant did not

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show by a preponderance of the evidence that the amount in controversy was met, Defendant had
an objectively reasonable basis to seek removal.
Accordingly, it is hereby ORDERED AND ADJUDGED that Plaintiff’s motion for
attorneys’ fees and costs pursuant to 28 U.S.C. § 1447(c) (Doc. 20) is DENIED.
DONE and ORDERED at Tampa, Florida, this 5th day of May, 2017.

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