Salazar v. Family Dollar Stores of Florida, Inc.

Filing 11

ORDER granting 7 --motion to remand to state court; denying motion for attorney's fees and costs. Signed by Judge Steven D. Merryday on 6/26/2017. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MARIA SALAZAR,
Plaintiff,
v.

CASE NO. 8:17-cv-1044-T-23JSS

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

ORDER
After slipping and falling in the defendant’s store, the plaintiff sued for
negligence in state court. The defendant removed (Doc. 1) the action and attempted
to invoke diversity jurisdiction. The plaintiff moves (Doc. 7) to remand and argues
that the record fails to show an amount in controversy greater than $75,000.
DISCUSSION
In accord with the Florida Rules of Civil Procedure, the complaint alleges that
damages exceed $15,000. When a complaint fails to specify damages in excess of
$75,000, the removing defendant must proffer evidence sufficient to show that the
amount in controversy more likely than not exceeded $75,000 on the day of removal.
Williams v. Best Buy Co., Inc., 269 F.3d 1316, 1319–20 (11th Cir. 2001). Although a
defendant may submit a “wide range of evidence” to show the amount in

controversy, Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 755 (11th Cir. 2010),
the defendant attaches no evidence to the response (Doc. 9) in opposition.
The plaintiff requests damages for an injury, “pain and suffering,” “mental
anguish,” and medical care. (Doc. 2) The defendant’s opposition quantifies neither
the monetary value of the “pain and suffering” nor the “mental anguish” nor the
injury, and the paltry record (which comprises a three-page complaint and seven
pages of heavily-redacted interrogatory answers) precludes an informed computation.
In both the notice of removal and the opposition to remand, the defendant
argues that “past and future medical expenses” exceed $75,000. (Docs. 1 and 9) An
interrogatory answer states that the plaintiff incurred $24,286.55 in medical expenses
as a result of the injury.1 (Doc. 1-2 at 3) Also, the plaintiff’s orthopedic surgeon
states:
Full options were discussed in length with the patient, including
continued conservative treatment and possible corticosteroid
injections into one or both knees versus surgical intervention with
knee arthroscopy. The approximate global cost of this procedure
would be $25,000 to $30,000. However, the cost will fluctuate
somewhat depending on the findings during the diagnostic portion
of the procedure. Depending on the complexity of the repair, the
approximate global cost may be $40,000 to $50,000.

(Doc. 1-3 at 4) Additionally, the plaintiff’s neurosurgeon confusingly states:
I would recommend an SI joint injection [which costs $5,000] . . .
Should [the plaintiff] respond to this, this may be the only treatment
she will need or she may need an additional injection. Although, a
radiofrequency ablation or an SI joint fusion may be a possibility in the
future. The approximate global cost of the procedure would be

1

An interrogatory that contains sufficient facts can contribute to the amount-in-controversy
determination. Pretka, 608 F.3d at 753–55.

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$25,000 to $28,000. The approximate global cost for an SI joint
fusion would be $30,000 with facility and anesthesia charges being
approximately $45,000 to $50,000. The approximate global cost of
a trial of epidural steroid injections would be $6,500.

(Doc. 1-3 at 6) Finally, the neurosurgeon states that the plaintiff “wish[es] to proceed
with the right SI joint injection,” which costs $5,000. (Doc. 1-3 at 6)
A medical expense not yet incurred and which the plaintiff might never incur
if another treatment succeeds or if the plaintiff recovers without incurring the expense
is not “in controversy” at the time of removal. See, e.g., Cobb v. Sanders, 2016 WL
4197595 (S.D. Ga. Aug. 9, 2016) (Epps, J.) (citing Sinclair v. State Farm Mut. Auto. Ins.
Co., 2011 WL 2746823 (M.D. Fla. July 14, 2011) (Steele, J.)). In this action, the
defendant fails to show facts that suggest the plaintiff likely will undergo a treatment
other than the $5,000 injection. See, e.g., Arrington v. Wal-Mart Stores, Inc., 2014 WL
657398 (M.D. Ga. Feb. 20, 2014) (Lawson, J.) (remanding a slip-and-fall action
because the record insufficiently evidenced the amount in controversy from the
plaintiff’s future medical expenses); Cobb, 2016 WL 4197595 at *3 (remanding and
observing that the record “is devoid of helpful imaging evidence or other concrete
medical evidence showing what, if any, future surgery may be necessary as a result of
the accident”). The plaintiff’s orthopedic surgeon “discussed” with the plaintiff
several treatments, “including” two options that apparently cost between $25,000 and
$50,000, but the defendant submits no evidence to show which treatment, if either,

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the plaintiff will undergo.2 Without any evidence about the likelihood that a
plaintiff’s injury will necessitate a particular treatment, the amount in controversy
must exclude as an uncertain prospect the cost of a treatment mentioned by a doctor.
See Lowery v. Alabama Power Co., 483 F.3d 1184, 1213–18 (11th Cir. 2007) (cautioning
that a removing defendant cannot “speculate” about the amount in controversy and
holding that record evidence must show the amount in controversy). The
neurosurgeon offers no opinion about the likelihood that the first SI joint injection
will succeed, which precludes determining whether the plaintiff likely will incur the
cost of another treatment. (Doc. 1-3 at 6, at which the neurosurgeon states, “Should
[the plaintiff] respond to this [SI joint injection], this may be the only treatment she
will need.”)
Also, the defendant cites the plaintiff’s refusal to stipulate that the amount in
controversy is less than $75,000.01. (Doc. 9 at 9) But a “refusal to stipulate standing
alone does not satisfy [the defendant’s] burden of proof” to show an amount in
controversy greater than $75,000. Williams, 269 F.3d at 1320.
Finally, the defendant cites an “oral settlement offer” as evidence of the
amount in controversy. (Doc. 9 at 9, which states that “[p]laintiff has made an oral
settlement demand of $75,000”) For several reasons, the “oral settlement offer”

2

The defendant’s opposition states that “[p]laintiff’s counsel informed counsel for [the
defendant] that [p]laintiff recently was told that she may require knee replacement surgery.” (Doc. 9
at 6–7) As explained above, speculation that a plaintiff might require a treatment insufficiently
evidences the amount in controversy. Even if not speculative, the unverified response is not evidence
and consequently cannot establish the amount in controversy.

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cannot evidence the amount in controversy. First, a statement in an unverified
response (for example, the statement that the plaintiff offered to settle the action for
$75,000) is not evidence. Second, a settlement offer that exceeds $75,000 can
evidence the amount in controversy only if supported by facts. See, e.g., Jackson v.
Select Portfolio Servicing, Inc., 651 F.Supp.2d 1279, 1281 (S.D. Ala. 2009) (Steele, J.)
(“Settlement offers commonly reflect puffing and posturing, and such a settlement
offer is entitled to little weight in measuring the preponderance of the evidence.”)
(citing Burns v. Windsor Ins. Co., 31 F.3d 1092, 1097 (11th Cir. 1994)). The record in
this action contains insufficient evidence to determine whether the settlement offer
“reasonably assess[es]” the value of the plaintiff’s claim. Jackson, 651 F.Supp.2d
(citing Golden Apple Mgmt. Co. v. Geac Comp., Inc., 990 F.Supp. 1364, 1368 (M.D. Ala.
1998) (Carroll, J.)). Third, even if the unverified statement could contribute to the
resolution of the motion to remand, the statement counsels strongly in favor of
remand. Because 28 U.S.C. § 1332 confers diversity jurisdiction only if the amount
in controversy “exceeds” $75,000, an offer to settle for $75,000 (that is, for less than
the jurisdictional minimum) militates mightily against diversity jurisdiction.
CONCLUSION
The plaintiff incurred $24,286.55 in medical expenses after slipping and falling
in the defendant’s store. Although the plaintiff’s doctors “discussed” several
expensive treatments, the record contains no evidence that the plaintiff likely will
undergo a treatment other than a $5,000 “SI joint injection.” The paltry record

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precludes quantifying the monetary value of the “pain and suffering,” the mental
anguish, and the plaintiff’s physical injury, and the defendant submits no evidence in
the opposition to remand. Because the defendant fails to proffer evidence permitting
the conclusion that the amount in controversy more likely than not exceeded $75,000
on the day of removal, the motion (Doc. 7) to remand is GRANTED, and the action
is REMANDED to the Circuit Court for the Thirteenth Judicial Circuit. Although
ultimately unsuccessful, the defendant did not “lack an objectively reasonable basis”
for removal. See Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005) (explaining
the circumstance in which a plaintiff can recover an attorney’s fee and costs for a
removal). The plaintiff’s request (Doc. 7 at 4) for an attorney’s fee and costs
attendant to the removal is DENIED.
ORDERED in Tampa, Florida, on June 26, 2017.

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