FLOYD et al v. WAL-MART STORES EAST LP

Filing 9

ORDER denying 5 Motion to Remand to State Court. Signed by JUDGE RICHARD SMOAK on 8/3/2012. (jcw)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION

GRACE FLOYD, and her HUSBAND
WINFRED A. FLOYD,
Plaintiff,
vs.

CASE NO. 3:12-cv-336/RS-CJK

WAL MART STORES EAST, LP.,
Defendant.
_________________________________________ /
ORDER
Before me are Plaintiff’s Motion to Remand (Doc. 5) and Defendant’s
Memorandum of Law in Opposition to Plaintiff’s Motion to Remand (Doc. 7).
A civil case filed in state court may be removed to federal court by the defendant
if the case could have been brought originally in federal court. See 28 U.S.C § 1441(a).
A removing defendant has the burden of establishing by a preponderance of the evidence
that federal jurisdiction exists. Leonard v. Enter. Rent a Car, 279 F.3d 967, 972 (11th
Cir. 2002). “In assessing the propriety of removal, the court considers the document
received by the defendant from the plaintiff - be it the initial complaint or a later received
paper - and determines whether that document and the notice of removal . . .
unambiguously establish federal jurisdiction.” Rollo v. Keim, 2009 U.S. Dist. LEXIS
56292, 5-6 (N.D. Fla. 2009) (citing Lowery v. Ala. Power Co., 483 F.3d 1184, 1213-14
(11th Cir. 2007)). In the context of diversity jurisdiction, a removing defendant must

demonstrate that the amount in controversy exceeds $75,000 and that there is complete
diversity of citizenship. See 28 U.S.C. § 1332.
The parties agree that there is complete diversity of citizenship and that the
amount in controversy exceeds $75,000. (Doc. 3, p. 1) However, Plaintiff argues that
Defendant waived its right to remove by taking substantial offensive or defensive action
in the state court action, indicating a willingness to litigate in that tribunal. (Doc. 5, p. 3)
These actions included filing an answer including affirmative defenses, the taking of
depositions, entering court-ordered mediation, answering interrogatories and serving
requests for production. (Doc. 5, p. 2) Defendant disagrees, arguing that the discovery
and investigation actions taken by Defendant were necessary to accurately assess
Plaintiff’s claims and to assess the removability of the action to Federal District Court.
(Doc. 7, p. 6)
As there is agreement between the parties as to diversity of citizenship and that the
amount in controversy exceeds $75,000, I see no reason to deny Defendant its right to
remove the case to federal court per 28 U.S.C. § 1446. Defendant made reasonable
efforts, through discovery and investigation, to substantiate Plaintiff’s claims against it
and to determine whether the current suit satisfied the requirements of 28 U.S.C. § 1332.
Defendant did not waive its right to removal by taking these actions, and Defendant
argues persuasively that the settlement demand, made by Plaintiff in an amount greater
than $75,000, gave Defendant notice of the removability of the action and triggered the
30-day removal period of 28 U.S.C. § 1446. Defendant did in fact seek removal within
that 30-day period, and I see no reason to remand the case to state court.

Plaintiff also objects to the use by Defendant of a confidential settlement demand
in its removal documents. (Doc. 5, p.2) Plaintiff asks this court to strike this portion of
the removal from the record as a violation of Fla. Stat. § 44.405 and sanction the
Defendant accordingly. Plaintiff cites the Florida 4th District Court of Appeal’s decision
in Paranzino v. Barnett Bank of South Florida, N.A. as supporting sanction under such
circumstances. 690 So.2d 725 (Fla. 4th DCA 1997). Defendant argues that Paranzino is
inapplicable to the facts of this case, noting a line of precedent that supports the use of
confidential settlement demands to prove the amount in controversy requirement of 28
U.S.C. § 1332. Defendant specifically cites this Court’s holding in Wood v. Colson to
support its argument. 2011 WL 3319537 (N.D. Fla.).
As I noted in Wood, confidentiality does not bar the use of a confidential
settlement demand for the purpose of satisfying the amount in controversy requirement of
28 U.S.C. § 1332. Defendant’s arguments are persuasive on this matter, and reliance by
Plaintiff on Paranzino is misplaced, as that case considered the narrower question of
what sanctions are proper in the event of a party leaking a confidential mediation
agreement to the public for personal benefit. The use by Defendant of the settlement
demand figure to establish the amount in controversy needed to remove this action is not
a violation of Fla. Statutes § 44.405, and no sanctions will be imposed on Defendant.
Plaintiff’s Motion to Remand (Doc. 5) is DENIED.
ORDERED on August 3, 2012.
/S/ Richard Smoak
RICHARD SMOAK
UNITED STATES DISTRICT JUDGE