Vanterpool v. Amazon.com.dedc, LLC.
Filing
15
ORDER: The Clerk is directed to REMAND this case, pursuant to 28 U.S.C. § 1447(c), to the Thirteenth Judicial Circuit, in and for Hillsborough County, Florida. The Clerk is further directed to terminate any previously scheduled deadlines, and thereafter CLOSE THIS CASE. Signed by Judge Virginia M. Hernandez Covington on 6/16/2017. (DMD)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MICHAEL A. VANTERPOOL,
Plaintiff,
v.
Case No. 8:17-cv-1347-T-33MAP
AMAZON.COM.DEDC, LLC,
Defendant.
_____________________________/
ORDER
This cause comes before the Court sua sponte. For the
reasons that follow, this case is remanded to the Thirteenth
Judicial Circuit, in and for Hillsborough County, Florida,
because the Court lacks subject matter jurisdiction.
Discussion
Federal courts are courts of limited jurisdiction and
are “empowered to hear only those cases within the judicial
power of the United States as defined by Article III of the
Constitution.” Bochese v. Town of Ponce Inlet, 405 F.3d 964,
974 (11th Cir. 1994). “[I]t 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).
1
This Florida Civil Rights Act (FCRA) action was removed
to this Court from the Thirteenth Judicial Circuit, in and
for Hillsborough County, Florida on June 7, 2017, on the basis
of diversity jurisdiction. (Doc. # 1). When jurisdiction is
premised upon diversity of citizenship, 28 U.S.C. § 1332(a)
requires among other things that “the matter in controversy
exceeds the sum or value of $75,000, exclusive of interest
and costs.” If “the jurisdictional amount is not facially
apparent from the complaint, the court should look to the
notice of removal and may require evidence relevant to the
amount in controversy at the time the case was removed.”
Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir.
2001). When “damages are unspecified, the removing party
bears the burden of establishing the jurisdictional amount by
a preponderance of the evidence.” Lowery v. Ala. Power Co.,
483 F.3d 1184, 1208 (11th Cir. 2007).
The
Complaint
does
not
state
a
specified
claim
to
damages. (Doc. # 2 at ¶ 1)(“This is an action by the Plaintiff
for damages exceeding $15,000, excluding attorneys’ fees or
costs.”).
speculates
Instead,
the
in
amount
its
in
Notice
of
controversy
Removal,
is
met
Amazon
because
Vanterpool’s back pay and attorney’s fees estimated through
the time of trial, combined with one-year of front pay,
2
compensatory damages for emotional suffering, and punitive
damages, likely exceed $75,000. (Doc. # 1 at 4-10). On June
12, 2017, the Court directed Amazon to file a supplement
regarding its calculation of the amount in controversy. (Doc.
# 6). Amazon filed its response on June 14, 2017. (Doc. # 8).
A.
In
Back Pay and Attorney’s Fees
its
information
response,
regarding
rather
its
than
providing
estimation
of
additional
damages,
Amazon
bickers with the Court’s previous order. Amazon insists the
Court should include an estimate of back pay and attorney’s
fees through the time of trial in its calculation. Amazon
relies heavily on the unpublished decision, Wineberger v.
RaceTrac
Petroleum,
Inc.,
672
F.
App’x
914
(11th
Cir.
2016)(per curiam). Amazon notes the Eleventh Circuit affirmed
the district court’s jurisdictional findings in an FCRA case,
where that court included estimates of back pay and attorney’s
fees through trial, a year of front pay, compensatory damages
in the $5,000 to $30,000 range, and $10,000 in punitive
damages in its amount in controversy calculation. (Doc. # 1
at 5-6; Doc. # 8 at 4-5).
First, Wineberger is not binding on this Court. See 11th
Cir. R. 36-2. And, while the Eleventh Circuit affirmed the
district court’s decision under a clear error standard in
3
that particular case, the Eleventh Circuit did not suggest
that all courts must follow that district court’s method of
estimating the amount in controversy.
As this Court explained in its previous Order:
back pay should be calculated only to the date of
removal. The reason for this is simple: the amount
in controversy needs to be determined at the time
the case is removed.” Bragg v. Suntrust Bank, No.
8:16-cv-139-T-33TBM, 2016 WL 836692, at *2 (M.D.
Fla. Mar. 4, 2016). The same is true for attorney’s
fees.
(Doc. # 6). While the Court may estimate the amount in
controversy using common sense and judicial experience, postremoval back pay is not in controversy at the time of removal.
See Davis v. Tampa Ship, LLC, No. 8:14-cv-651-T-23MAP, 2014
WL 2441900, at *2 (M.D. Fla. May 30, 2014)(“Even if a court
could ‘deduce, infer, or extrapolate’ post-removal back-pay,
that
back-pay
is
not
‘in
controversy’
at
the
time
of
removal.”).
Even if post-removal back pay were in controversy, the
Court considers an estimate of back pay through the time of
trial, which has not been set and likely will not occur,
overly
speculative.
back-pay
is
in
Cf.
Id.
controversy
(“Even
at
the
assuming
time
of
post-removal
removal,
the
defendant’s estimation of the plaintiff’s back-pay relies on
trial occurring in May 2015. However, ‘experience and common
4
sense’
suggests
that
this
action
will
resolve
before
trial.”). Thus, the Court will only consider an estimate of
Vanterpool’s back pay up to the time of removal, which was
approximately 53 weeks after his termination. Assuming a 40hour work week at Vanterpool’s hourly rate of $11.75, the
back pay amount is $24,910. (Doc. # 8 at 1-2).
Regarding attorney’s fees, Amazon has not presented any
calculation of the amount of attorney’s fees incurred up to
the time of removal. Therefore, the Court will not consider
attorney’s
fees
controversy.
See
in
its
Bragg,
calculation
No.
of
the
amount
8:16-cv-139-T-33TBM,
2016
in
WL
836692, at *3 (M.D. Fla. Mar. 4, 2016)(remanding case where
defendant failed to provide information to calculate the
attorney’s fees accrued to the day of removal).
B.
Front Pay
While front pay may be considered in calculating the
amount in controversy, as the Court explained, “‘speculation
regarding front pay cannot be used to supplement insufficient
back
pay
for
requirement
the
for
purpose
diversity
of
of
meeting
the
jurisdictional
citizenship.’”
(Doc.
#
6)(quoting Mavaddat v. Cracker Barrel Old Country Store,
Inc., No. 8:15-cv-1701-T-33JSS, 2015 WL 5897520, at *2 (M.D.
Fla. Oct. 7, 2015)).
5
Furthermore, Amazon does not explain why the inclusion
of one year of front pay is appropriate in this particular
case,
beyond
quoting
a
case
for
the
proposition
“it
is
reasonable to add one year of front pay to the amount in
controversy
in
an
FCRA
employment
discrimination
case.”
Gonzalez v. Honeywell Int’l, Inc., No. 8:16-cv-3359-T-30TGW,
2017 WL 164358, at *2 (M.D. Fla. Jan. 17, 2017). But, without
providing any information as to why a full year of front pay
should be included in this particular case, Amazon has not
met its burden of showing by a preponderance of the evidence
that
such
amount
should
be
included
in
the
amount
in
controversy. See Bragg, 2016 WL 836692, at *2 (declining to
include
one
year
of
front
pay
in
amount
in
controversy
calculation because it was too speculative); see also Snead
v. AAR Mfg., Inc., No. 8:09-cv-1733-T-30EAJ, 2009 WL 3242013,
at *2-3 (M.D. Fla. Oct. 6, 2009)(finding that “Defendant’s
calculations regarding front pay . . . are pure speculation”).
C.
The
Compensatory Damages
Complaint
compensatory
damages
does
not
sought
or
specify
provide
the
amount
details
on
of
the
emotional distress and loss of enjoyment in life Vanterpool
suffered as a result of his termination. See Mathew v. S & B
Eng’rs and Constr., LTD., No. 8:08–cv–1801–T–33TGW, 2009 WL
6
249931
(M.D.
Fla.
Jan.30,
2009)(holding
that
plaintiff’s
claim for unspecified compensatory damages, her back pay
damages of approximately $66,000, and evidence of her failure
to
stipulate
regarding
the
jurisdictional
amount
were
insufficient to establish the jurisdictional amount). And
Amazon
presented
no
additional
evidence
regarding
Vanterpool’s emotional distress or suffering. (Doc. # 1 at 89; Doc. # 8 at 2-4).
Instead,
Amazon
emphasizes
one
FCRA
disability
discrimination case it cited in its Notice of Removal, in
which
the
plaintiff
was
awarded
$75,000
in
compensatory
damages. (Doc. # 8 at 2)(citing Archer v. Aaron Rents, Inc.,
No. 4:00-cv-00335 (N.D. Fla. Dec. 21, 2001) at (Doc. # 97)).
Amazon argues this case is analogous to the present one
because both that plaintiff and Vanterpool are “late in
[their]
career[s],”
both
were
terminated
after
going
on
medical leave, and both held their respective positions for
a short time. (Doc. # 8 at 2-3). But Amazon failed to compare
the mental and emotional states of Vanterpool and the Archer
plaintiff,
which
is
necessary
to
determine
whether
the
compensatory damages claims for mental anguish are analogous.
Cf. Bragg, 2016 WL 836692, at *2 (“SunTrust cites to three
prior employment discrimination cases in which plaintiffs
7
were awarded damages in excess of $75,000 for mental anguish,
[] but does not explain why that amount would be awarded in
this case.” (emphasis original)). And, despite being given
the opportunity to provide additional information, Amazon has
neither presented additional case law nor demonstrated what
the typical compensatory damages award is in FCRA disability
discrimination cases.
Because the Complaint is devoid of allegations regarding
Vanterpool’s distress and Amazon failed to provide additional
information about his distress, the Court cannot reasonably
determine
what
amount
of
compensatory
damages
should
be
included in the amount in controversy. Cf. Golden v. DodgeMarkham
Co.,
1
F.
Supp.
2d
1360,
1366
(M.D.
Fla.
1998)(“Compensatory damages are extremely nebulous. Making a
general
blanket
statement
that,
if
Plaintiff
prevails,
compensatory damages could certainly entitle him to thousands
of dollars, does not rise to the levels of proving, by a
preponderance of the evidence, that the amount in controversy
exceeds $75.000.00.”). As the Court warned Amazon, “nebulous
allegations
of
.
.
.
compensatory
.
.
.
damages
are
insufficient.” (Doc. # 6). Therefore, the Court will not
include an amount of compensatory damages in its calculation.
8
D.
Punitive Damages
In his Complaint, Vanterpool seeks an unspecified amount
of punitive damages. Amazon points out that the FCRA sets a
maximum punitive damages award of $100,000, and argues that
$100,000 in punitive damages should therefore be added to the
amount in controversy because Vanterpool could potentially
recover this amount. (Doc. # 1 at 9-10; Doc. # 8 at 6-7).
But a mere request for punitive damages, which may reach
a statutory maximum of $100,000, does not merit a finding
that the amount in controversy has been met. As the Court
noted in another FCRA case,
Rather than proving jurisdictional facts, Northern
simply points out that the complaint in this case
includes a request for punitive damages. Following
Northern’s logic, every Florida Civil Rights Act
case filed in state court containing a request for
punitive damages would automatically meet the
jurisdictional minimum for removal to federal
court. That result would be untenable.
Boyd v. N. Trust Co., No. 8:15-cv-2928-T-33TBM, 2016 WL
640529, at *4 (M.D. Fla. Feb. 18, 2016).
Amazon has not provided any evidence as to the amount of
punitive damages in this case or information on the punitive
damages typically recovered in FCRA disability discrimination
cases. Cf. Bragg, 2016 WL 836692, at *3 (“SunTrust has failed
to provide any evidence concerning punitive damages, despite
9
the Court’s giving SunTrust the opportunity to do so. Because
SunTrust has made no effort to meet its burden of proving the
amount of punitive damages in controversy, the Court cannot
include punitive damages in the jurisdictional calculus.”).
Therefore,
an
estimation
of
punitive
damages
is
overly
speculative and will not be included in the Court’s amount in
controversy calculation.
Thus,
the
only
damages
Amazon
has
shown
by
a
preponderance of the evidence are $24,910 in back pay. This
amount falls below the $75,000 jurisdictional threshold and
remand is appropriate. See 28 U.S.C. § 1447(c)(“If at any
time before final judgment it appears that the district court
lacks
subject
matter
jurisdiction,
the
case
shall
be
remanded.”).
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)
The Clerk is directed to REMAND this case, pursuant to
28 U.S.C. § 1447(c), to the Thirteenth Judicial Circuit,
in and for Hillsborough County, Florida.
(2)
The
Clerk
is
further
directed
to
terminate
any
previously scheduled deadlines, and thereafter CLOSE
THIS CASE.
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DONE and ORDERED in Chambers in Tampa, Florida, this
16th day of June, 2017.
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