Prestige Supplements,LLC v. Norax Supplements LLC et al

Filing 22

ORDER granting 18 Motion to Remand to State Court: this action will be remanded to state court; the motion is denied to the extent that it seeks attorney's fees related to the remand. The Clerk of Court is directed to remand this case to the Sixth Judicial Circuit, in and for Pinellas County, Florida, and provide that court with a copy of this Order. The Clerk of Court is further directed to close this case and terminate any pending motions as moot. Signed by Judge James S. Moody, Jr on 10/6/2017. (JG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

PRESTIGE SUPPLEMENTS, LLC,
a Florida limited liability company,
Plaintiff,
v.

Case No. 8:17-cv-1938-T-30TBM

NORAX SUPPLEMENTS LLC, a Georgia
Limited Liability Company, et al.,
Defendants.
_____________________________________/

ORDER
THIS CAUSE comes before the Court upon Plaintiffs’ Motion to Remand (Dkt. 18)
and Defendants’ Response in Opposition (Dkt. 21). The Court, having reviewed the motion,
response, and being otherwise advised in the premises, concludes that the motion should be
granted.
BACKGROUND
Plaintiff Prestige Supplements, LLC commenced this action on or about March 13,
2017, in the Circuit Court of the Sixth Judicial Circuit, in and for Pinellas County, Florida.
Plaintiff’s complaint alleges that it is the sole developer, designer, manufacturer, and retailer
of Adderin, a natural dietary supplement brand. Plaintiff has exclusively sold its Adderin
brand on its website since May 2015. Plaintiff learned that Defendants began either
manufacturing or selling imitation Adderin in late 2016. Defendants have been selling the
imitation Adderin product on eBay Inc., an internet marketplace. The labeling of the

imitation Adderin lists Plaintiff’s corporate information, including Plaintiff’s customer
service telephone number. Plaintiff has not authorized Defendants to manufacture, sell, or
otherwise distribute Adderin.
As a result of Defendants’ actions, Plaintiff’s complaint alleges the following claims:
a claim under the Florida Deceptive and Unfair Trade Practices Act (Count I); a claim for
Trademark Dilution under Florida law (Count II); a claim for Trademark Infringement under
Florida law (Count III); a claim for Unfair Competition under Florida law (Count IV); and
a claim for Civil Conspiracy (Count V). With respect to damages, the complaint seeks
compensatory damages, “monetary damages,” attorney’s fees (for the statutory claims that
permit an award of prevailing party attorney’s fees), and an injunction that would essentially
enjoin Defendants from further unauthorized use of Plaintiff’s trademark. See (Dkt. 2).
On August 15, 2017, Defendants 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.

To establish the amount in

controversy, Defendants relied upon settlement discussions between the parties. Notably,
the settlement discussions addressed the settlement of this case and a related case pending
in a Georgia state court.
Plaintiff now moves to remand the case. Plaintiff argues that the removal was
untimely—due to a technical issue with all Defendants consenting to the removal—and that,
even if the case had been timely removed, Defendants did not establish that the amount in
controversy exceeded $75,000.00. Because the Court agrees that Defendants did not

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establish an amount in controversy greater than $75,000, the Court declines to address
whether the removal was procedurally improper. The Court now turns to the relevant law.
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)
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

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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
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
Defendants have not met their burden in establishing by a preponderance of the evidence that
the amount in controversy more likely than not exceeds $75,000. The complaint is virtually
silent as to the amount of damages. As a result, Defendants provided evidence of settlement
discussions between the parties. But those discussions do not assist the Court because
Plaintiff requested damages in the amount of $62,958.00 to settle the lawsuit, which does not
meet the threshold. Defendants calculated additional damages on top of the $62,958.00, but
these additional amounts are pure speculation and relate to a global settlement of this action
and the related Georgia action. The Court cannot consider any damages associated with the
Georgia action because it is a separate action. Thus, the only credible calculation of damages
in this case is Plaintiff’s $62,958.00 settlement demand which, on its face, does not exceed
$75,000.

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In sum, the evidence Defendants rely upon to establish the amount of controversy is
insufficient to show that the damages in this case will exceed $75,000. Even applying the
Court’s judicial experience and common sense, the Court cannot properly appraise the actual
value of Plaintiff’s damages. This is so, even assuming Plaintiff would be awarded a
reasonable amount of statutory damages, compensatory damages, and attorney’s fees. There
is simply no competent evidence of Plaintiff’s damages in this case.
It is therefore ORDERED AND ADJUDGED that:
1.

Plaintiffs’ Motion to Remand (Dkt. 18) is granted to the extent that this action
will be remanded to state court; the motion is denied to the extent that it seeks
attorney’s fees related to the remand.

2.

The Clerk of Court is directed to remand this case to the Sixth Judicial Circuit,
in and for Pinellas County, Florida, and provide that court with a copy of this
Order.

3.

The Clerk of Court is further directed to close this case and terminate any
pending motions as moot.

DONE and ORDERED in Tampa, Florida on October 6, 2017.

Copies furnished to:
Counsel/Parties of Record
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