Marshall v. Marshall et al
Filing
12
ORDER: The Clerk is directed to REMAND this case, pursuant to 28 U.S.C. § 1447(c), to the Tenth Judicial Circuit, in and for Polk County, Florida. The Clerk is further directed to terminate any previously scheduled deadlines and motions, and thereafter CLOSE THIS CASE. Signed by Judge Virginia M. Hernandez Covington on 3/20/2018. (DMD)
UNITED STATES DISTRICT
COURT MIDDLE DISTRICT OF
FLORIDA TAMPA DIVISION
ALBERT P. MARSHALL,
Plaintiff,
v.
Case No. 8:18-cv-457-T-33CPT
LACEY M. MARSHALL, and
SAMANTHA R. MARSHALL,
Defendants.
/
ORDER
This cause comes before the Court upon review of the
file. For the reasons that follow, the Court remands this
action to the Tenth Judicial Circuit, in and for Polk County,
Florida pursuant to 28 U.S.C. § 1447(c) because this 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
1
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).
This case, which involves the alleged conversion of
funds and seeks a declaratory judgment that the change of
beneficiary
designation
on
an
investment
account
was
fraudulent, was removed to this Court for the first time on
January 24, 2018. Marshall v. Marshall, 8:18-cv-205-T-33CPT
at (Doc. # 1). Because the notice of removal argued the amount
in controversy was $100,000 while the Complaint stated the
damages were under $75,000, the Court gave the parties an
opportunity to provide more information on the amount in
controversy. Id. at (Doc. # 6). Rather than provide additional
information, the parties filed a notice stating that they
agreed the amount in controversy exceeded the jurisdictional
amount. Id. at (Doc. # 8). Because such stipulation did not
prove to a legal certainty that the claim exceeded $75,000,
the Court remanded the case on February 9, 2018. Id. at (Doc.
# 15)(citing Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095
(11th Cir. 1994)).
The case was removed again on February 26, 2018. (Doc.
# 1). “[A] party is not entitled, under existing laws, to
file a second petition for removal upon the same grounds,
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where, upon the first removal by the same party, the federal
court declined to proceed and remanded the suit.” Sibilia v.
Makita Corp., 782 F. Supp. 2d 1329, 1330–31 (M.D. Fla. 2010).
“But
this
provided
language
that
the
does
not
prevent
successive
subsequent
removal
petition
removals
alleges
a
different factual basis for seeking removal and otherwise
meets the requirements of section 1446(b).” Id. Under 28
U.S.C. § 1446(b)(3), “if the case stated by the initial
pleading is not removable, a notice of removal may be filed
within 30 days after receipt by the defendant, through service
or otherwise, of a copy of an amended pleading, motion, order
or other paper from which it may first be ascertained that
the case is one which is or has become removable.”
Here, no amended complaint, upon which a second removal
could be based, was filed. The operative Complaint still
states that damages are “in excess of $15,000.00 but less
than $75,000.00.” (Doc. # 2 at 1). Therefore, Defendants must
prove to a legal certainty that the claim exceeds $75,000,
using “other paper” to support that the case has become
removable. Burns, 31 F.3d at 1095. “This ‘strict standard’
imposes a ‘heavy’ burden of proof.” Cowan v. Outpatient
Partners, Inc., No. 6:04-cv-28-Orl-22JGG, 2004 WL 1084160, at
*6 (M.D. Fla. Mar. 31, 2004).
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Defendants argue that the amount in controversy exceeds
$75,000 — a claim they support with the prior stipulation to
jurisdiction and an email from Plaintiff’s counsel dated
January 30, 2018, in which counsel described changes that
would be made in an amended complaint. (Doc. # 1 at 3-5; Doc.
# 1-2; Doc. # 1-7). The proposed changes for an amended
complaint included deleting the “but less than $75,000.00”
language and changing the date in a few paragraphs from “March
17, 2016 to March 17, 2011” to clarify that the declaratory
judgment
sought
would
declare
an
earlier
change
of
beneficiary fraudulent. (Doc. # 1-7). As in the previous
federal case, Defendants maintain that the Complaint alleges
an earlier 2011 change of beneficiary was fraudulent, which
would render the amount in controversy over $75,000. However,
the Complaint as written seeks a declaration only that a
transfer in 2016 be declared fraudulent, such that the amount
in controversy would not exceed $75,000.
But,
Plaintiff
despite
would
counsel’s
make,
email
Plaintiff
indicating
never
filed
changes
an
amended
complaint, let alone an amended complaint increasing the
alleged amount in controversy or clarifying the years of
alleged fraud. The Court is not convinced that an email of
counsel
—
indicating
intended
4
amendments
that
Plaintiff
ultimately chose not to make — proves that the amount in
controversy exceeds $75,000. Furthermore, although Defendants
highlight the stipulation filed during the previous removed
case, such bald stipulation to jurisdiction is not effective.
See W. Peninsular Title Co. v. Palm Beach Cty., 41 F.3d 1490,
1492 n.4 (11th Cir. 1995)(stating that “[p]arties may not
stipulate jurisdiction” but may stipulate “facts [that] give
rise to jurisdiction”). And Defendants have not provided
other
facts,
such
as
documentary
evidence,
answers
to
interrogatories, or requests for admission, establishing that
Plaintiff seeks over $75,000 in damages.
Plaintiff remains the “master of his own claim,” and he
chose not to amend his Complaint, which clearly alleges the
amount in controversy does not exceed the jurisdictional
threshold.
Burns,
31
F.3d
at
1095.
The
stipulation
and
counsel’s email attached to the Notice of Removal do not
convince the Court otherwise. Therefore, the Court concludes
that the amount in controversy requirement is not met, and
remand to state court is appropriate.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
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(1)
The Clerk is directed to REMAND this case, pursuant to
28 U.S.C. § 1447(c), to the Tenth Judicial Circuit, in
and for Polk County, Florida.
(2)
The
Clerk
previously
is
further
scheduled
directed
deadlines
to
terminate
any
and
motions,
and
thereafter CLOSE THIS CASE.
DONE and ORDERED in Chambers in Tampa, Florida, this
20th day of March, 2017.
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