Thomas v. Family Dollar Stores of Florida, Inc.

Filing 10

ORDER denying 7 Plaintiff's Motion to Remand to State Court. Signed by Judge James S. Moody, Jr. on 5/1/2017. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

MARY A. THOMAS,
Plaintiff,
v.

Case No. 8:17-cv-583-T-30AEP

FAMILY DOLLAR STORES OF
FLORIDA, INC.,
Defendant.
_____________________________________/

ORDER
THIS CAUSE comes before the Court upon Plaintiff’s Motion to Remand (Dkt. 7)
and Defendant’s Response in Opposition (Dkt. 8). The Court, having reviewed the motion,
response, and being otherwise advised in the premises, concludes that the motion should be
denied.
BACKGROUND
Plaintiff Mary A. Thomas commenced this negligence action on or about February 14,
2017, in the Circuit Court of the Thirteenth Judicial Circuit, in and for Hillsborough County,
Florida. Plaintiff seeks damages against Defendant Family Dollar Stores of Florida, Inc.
related to a slip-and-fall injury she sustained at one of Defendant’s stores. Specifically, the
complaint claims that Plaintiff “. . . was injured in and about her body and extremities;
incurred medical expenses for the treatment of said injuries; incurred pain and suffering of
both a physical and mental nature; incurred a permanent injury to the body as a whole;

incurred loss of ability to lead and enjoy a normal life; incurred loss of wages and a loss of
wage earning capacity, all of which are either permanent or continuing in nature” and that
Plaintiff “will sustain said loss in the future.” (Dkt. 2).
On March 9, 2017, Defendant timely removed the complaint to this Court based on
diversity jurisdiction. The notice of removal indicates that the parties are diverse and
Plaintiff’s damages exceed the amount in controversy. Defendant relies, in relevant part,
upon the allegations in the complaint, Plaintiff’s pre-suit demand letter, which demanded
over $75,000 and documented past medical expenses totaling $17,155, and a
“Comprehensive Therapeutic Treatment Course Summary” from Plaintiff’s orthopaedic
surgeon, wherein that doctor estimated future medical costs stemming from Plaintiff’s
injuries. In the summary, the doctor forecasted that Plaintiff’s future medical costs “would
be $2500 to $3000 a year for continued physical therapy and other therapeutic treatment
modalities and up to $2500 a year for anti-inflammatory and pain analgesia.” (Dkt. 1-5).
Defendant contends that, based on the doctor’s forecast, Plaintiff, who was 64 years old at
the time of the subject incident, and who has a life expectancy of 19.52 years, would incur
future medical costs in a range of approximately $97,600 to $107,360.
Plaintiff now moves to remand the case, arguing Defendant did not establish that the
amount in controversy exceeds $75,000.
DISCUSSION
Where the alleged basis for federal jurisdiction is diversity under 28 U.S.C. § 1332,
as it is in this case, the removing defendant has the burden of demonstrating that there is (1)
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complete diversity of citizenship and (2) an amount in controversy greater than $75,000. See
28 U.S.C. § 1332(a). When, as here, damages are not specified in the state-court complaint,
the defendant seeking removal “need include only a plausible allegation that the amount in
controversy exceeds the jurisdictional threshold.” Dart Cherokee Basin Operating Co. v.
Owens, 135 S. Ct. 547, 554 (2014) (citing 28 U.S.C. § 1446(a)). If, however, a “plaintiff
contests the defendant’s allegation... ‘[R]emoval...is proper on the basis of an amount in
controversy asserted’ by the defendant ‘if the district court finds, by the preponderance of
the evidence, that the amount in controversy exceeds’ the jurisdictional threshold.” Id. at
553-54 (quoting 28 U.S.C. § 1446(c)(2)(B)); see also Roe v. Michelin N. Am., Inc., 613 F.3d
1058, 1061 (11th Cir. 2010). A removing defendant is not required “to prove the amount in
controversy beyond all doubt or to banish all uncertainty about it.” Pretka v. Kolter City
Plaza II, Inc., 608 F.3d 744, 754 (11th Cir. 2010).
In determining the amount in controversy, the court should look first to the complaint.
Id. If the amount is unavailable from the complaint alone, the court can look to the notice
of removal and other “evidence relevant to the amount in controversy at the time the case
was removed,” including evidence submitted in response to a motion to remand. Id. In
Pretka, the Eleventh Circuit held that a party seeking to remove a case to federal court within
the first thirty days after service is not restricted in the types of evidence it may use to satisfy
the jurisdictional requirements for removal. Id. at 770-71. This evidence may include the
removing defendant’s own affidavit, declaration, or other documentation. Id. at 755.
Moreover, district courts are permitted to make “reasonable deductions” and “reasonable
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inferences,” and need not “suspend reality or shelve common sense in determining whether
the face of a complaint ... establishes the jurisdictional amount.” Id. at 770. “Instead, courts
may use their judicial experience and common sense in determining whether the case stated
in a complaint meets federal jurisdictional requirements.” Roe, 613 F.3d at 1062-63.
Applying the guidelines set forth in Roe and Pretka, the Court concludes that
Defendant met its burden in establishing by a preponderance of the evidence that the amount
in controversy more likely than not exceeds $75,000. The complaint alleges extensive
damages associated with significant personal injury. Defendant also provides evidence of
Plaintiff’s medical expenses incurred prior to filing this action (i.e., $17,155), Plaintiff’s presuit demand, in which she demanded an amount greater than $75,000, and Plaintiff’s future
medical costs in a range from $97,600 to $107,360. It appears, based on the complaint’s
allegations, that Plaintiff also seeks damages for lost wages, future loss of earning capacity,
and mental pain and suffering.
In sum, it would “suspend reality” to conclude that the damages do not exceed
$75,000. And Plaintiff’s arguments to the contrary are unpersuasive, especially because she
does not provide the Court with any evidence rebutting Defendant’s claim that the amount
in controversy exceeds $75,000.

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It is therefore ORDERED AND ADJUDGED that Plaintiff’s Motion to Remand
(Dkt. 7) is denied.
DONE and ORDERED in Tampa, Florida on May 1, 2017.

Copies furnished to:
Counsel/Parties of Record

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