Perez v. Shanks

Filing 10

ORDER: The Clerk is directed to REMAND this case to state court because the Court lacks subject matter jurisdiction. After remand, the Clerk shall CLOSE this case. Signed by Judge Virginia M. Hernandez Covington on 1/6/2025. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ADOLFO LAZARO PEREZ,
Plaintiff,
v.

Case No. 8:24-cv-2954-VMC-NHA

JENNA SHANKS,
Defendant.
_____________________________/
ORDER
This cause comes before the Court sua sponte. For the
reasons that follow, this case is remanded to state court for
lack of subject matter jurisdiction.
Discussion
“Federal

courts

have

limited

subject

matter

jurisdiction.” Morrison v. Allstate Indem. Co., 228 F.3d
1255, 1260-61 (11th Cir. 2000). As such, “[a] federal court
not only has the power but also the obligation at any time to
inquire

into

jurisdiction

whenever

the

possibility

that

jurisdiction does not exist arises.” Fitzgerald v. Seaboard
Sys. R.R., Inc., 760 F.2d 1249, 1251 (11th Cir. 1985).
Plaintiff initiated this negligence case arising from a
car accident in state court. (Doc. # 1-1). Thereafter, on

1

December 23, 2024, Defendant removed the case to this Court
on the basis of diversity jurisdiction. (Doc. # 1).
When

jurisdiction

citizenship,

28

is

U.S.C.

§

premised
1332(a)

upon

diversity

requires,

among

of

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.

unspecified,

the

removing

2001).

party

When

bears

“damages

the

burden

are
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 amended complaint does not state a specified claim
to damages. (Doc. # 1-1 at 1). Instead, in its notice of
removal, Defendant relied upon a July 2024 pre-suit demand
letter for $100,000, and the details of damages outlined
therein. (Doc. # 1 at 3-4; Doc. # 1-6).
Upon review of the notice of removal, the Court was not
persuaded that the amount-in-controversy requirement has been
satisfied. (Doc. # 8). Specifically, the Court wrote: “Here,
2

the

letter

demands

$100,000,

but

estimates

that

Adolfo

Perez’s damages for past medical expenses are $9,605.23 –
below the $75,000 threshold. The demand letter, which is over
five months old, claimed that Mr. Perez may need to undergo
a surgery, which would cost $336,865.00. Such a claim of a
future

medical

expense

is

insufficient

to

establish

the

amount-in-controversy requirement. Thus, at this time, the
Court

is

not

convinced

that

the

amount-in-controversy

requirement has been met by a preponderance of the evidence.”
(Id.) (citations omitted).
Defendant has now responded to the Court’s order in an
attempt to establish this Court’s diversity jurisdiction.
(Doc. # 9). However, Defendant still fails to show by a
preponderance of the evidence that the amount in controversy
exceeds $75,000. In its new notice, Defendant reiterates the
claimed damages in the demand letter, including the estimated
cost of $336,865 for a future surgery and estimates for past
and future pain and suffering damages. (Id. at 4-5). Defendant
also notes three cases personal injury cases in which juries
awarded over $75,000 in damages. (Id. at 6-7).
The Court disagrees with Defendant’s arguments. As the
Court emphasized before, demand letters do not automatically
establish the amount in controversy. See Lamb v. State Farm
3

Fire Mut. Auto. Ins. Co., No. 3:10-cv-615-TJC-JK, 2010 WL
6790539, at *2 (M.D. Fla. Nov. 5, 2010) (stating that demand
letters and settlement offers “do not automatically establish
the

amount

in

controversy

for

purposes

of

diversity

jurisdiction”); Piazza v. Ambassador II JV, L.P., No. 8:10cv-1582-SDM-EAJ, 2010 WL 2889218, at *1 (M.D. Fla. July 21,
2010) (same). Rather, courts evaluate whether demand letters
“‘reflect puffing and posturing’” or “whether they provide
‘specific information to support the plaintiff’s claim for
damages.’” Lamb, 2010 WL 6790539, at *2 (quoting Jackson v.
Select Portfolio Servicing, Inc., 651 F. Supp. 2d 1279, 1281
(S.D. Ala. 2009)).
The

Court

determines

that

Plaintiff’s

demand

for

$100,000 reflects puffing and posturing. A review of the presuit demand letter shows that Plaintiff has only incurred
$9,605.23 in medical expenses thus far. (Doc. # 1-6 at 6061). The remaining damages are hypothetical future medical
expenses, such as a surgery estimated to cost $$336,865, and
future pain and suffering damages estimated at $2,390,896
over Plaintiff’s expected lifetime. (Doc. # 1-6 at 60-62).
These estimates were given almost six months ago, and it does
not appear that Plaintiff has either scheduled or undergone
the recommended surgery. For this reason, the Court does not
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credit the estimated cost of future medical expenses. See
Pennington v. Covidien LP, No. 8:19-cv-273-VMC-AAS, 2019 WL
479473, at *2 (M.D. Fla. Feb. 7, 2019) (concluding that a
recommended

$110,000

surgery

was

“a

hypothetical future medical expense” and “too speculative to
include in the Court’s jurisdictional discussion” because the
surgery had not yet occurred or been scheduled and there was
no evidence to “confirm that this surgery is necessary”); see
also Rodriguez v. Family Dollar,
2017

U.S.

(remanding

Dist.
the

LEXIS

case

to

No.

8:17-cv-1340-VMC-JSS,

88594

(M.D.

Fla.

June

9,

2017)

state

court

where

the

amount

in

controversy was based on hypothetical future medical damages
and reasoning that the pre-suit settlement offers were mere
negotiation tactics).
Additionally, both Plaintiff’s estimates of past pain
and suffering and future pain and suffering damages are too
speculative

to

include

in

the

amount

in

controversy

calculation. “Courts will not speculate as to the value of
damages for pain and suffering.” Reyes v. Stockhill, 568 F.
Supp. 3d 1288, 1292 (M.D. Fla. 2021); see also Johnson-Lang
v. Fam. Dollar Stores of Fla., LLC, No. 8:21-cv-902-VMC-CPT,
2021 WL 1625167, at *2 (M.D. Fla. Apr. 27, 2021) (“Family
Dollar

Stores

does

not

provide
5

sufficient

detail

about

Johnson-Lang’s pain and suffering or the other unspecified
damages she has allegedly experienced.”); Nelson v. Black &
Decker

(U.S.),

Inc.,

No.

8:16-cv-869-SCB-JSS,

2015

WL

12259228, at *3 (M.D. Fla. Aug. 31, 2015) (“Plaintiff asserts
that her damages consist of lost past wages and past medical
expenses totaling $55,387.24, plus future medical expenses,
plus pain and suffering. There is no information for the Court
to estimate the amount of future medical expenses, and the
Court will not engage in speculation regarding the value of
her claim for pain and suffering.”).
Finally,

the

Court

is

not

persuaded

by

Defendant’s

citations to other cases in which juries awarded over $75,000
in

damages.

different

(Doc.

cases

do

#

9
not

at

6-7).

support

Such
that

damages

awards

Plaintiff’s

in

damages

exceed $75,000 in this particular case. See Javier-Anselmo v.
Wal-Mart Stores E., L.P., No. 8:20-cv-548-VMC-JSS, 2020 WL
1271063, at *1 (M.D. Fla. Mar. 17, 2020) (“Wal-Mart still
fails to show by a preponderance of the evidence that the
amount in controversy exceeds $75,000. In fact, the only
additional information Wal-Mart provides is a list of other
slip-and-fall cases in which Florida courts have awarded over
$75,000 in damages. But the Court is not persuaded that such

6

damages awards support that Javier-Anselmo’s damages exceed
$75,000 in this case.” (citation omitted)).
In short, the only concrete damages outlined in the
record are $9,605.23 in past medical expenses. (Doc. # 1-6 at
60-61). This is far below the $75,000 minimum to establish
jurisdiction. Nor is the Court persuaded by the bare list of
injuries Plaintiff suffered that his damages must exceed
$75,000. (Id. at 59-60). Defendant has not carried its burden
of establishing this Court’s diversity jurisdiction by a
preponderance of the evidence. The Court, finding that it
lacks subject matter jurisdiction, remands this case to state
court.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
The Clerk is directed to REMAND this case to state court
because the Court lacks subject matter jurisdiction. After
remand, the Clerk shall CLOSE this case.
DONE and ORDERED in Chambers in Tampa, Florida, this 6th
day of January, 2025.

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