ALL-SOUTH SUBCONTRACTORS INC v. AMERIGAS PROPANE INC et al

Filing 53

ORDER ADOPTING 46 REPORT AND RECOMMENDATION. Plaintiff's "Motion to Remand" is GRANTED and this matter is remanded to the state court from which it was removed. Plaintiff's "Amended Motion for Jurisdictional Discovery" is DENIED AS MOOT. The clerk is directed to close the file. Signed by CHIEF JUDGE M CASEY RODGERS on 7/30/2015. (sdw)

Page 1 of 5

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION

ALL-SOUTH SUBCONTRACTORS, INC.,
Plaintiff,
v.

Case No. 3:15cv9/MCR/CJK

AMERIGAS PROPANE, INC. and
AMERIGAS PROPANE, L.P.,
Defendants.
_____________________________________/
ORDER
This cause comes for consideration on the Magistrate Judge’s Report and
Recommendation dated June 12, 2015. The parties have been afforded an opportunity
to file objections pursuant to 28 U.S.C. § 636(b)(1), which they have taken advantage
of, and the Court has conducted a de novo review of the matter. The Court finds that
the Report and Recommendation is due to be adopted.
Background
According to the Complaint filed by All-South Subcontractors, Inc., “(All-South”),
defendants Amerigas Propane, Inc., and Amerigas Propane, L.P., (collectively
“Amerigas”) sell and deliver propane to customers in Florida. When Amerigas delivers
propane to customers, it charges a “fuel recovery fee,” which Amerigas claims is used
to recover the fuel costs incurred in delivering propane. All-South asserts, however,
that this fee is not used to offset fuel costs, and is in fact just a way to generate extra
profit at customer expense.

All-South argues that this practice violates the Florida

Deceptive and Unfair Trade Practices Act and that Amerigas has been unjustly enriched
as a result. All-South brings its claims against AmeriGas as a class action under Florida
law pursuant to Florida Rule of Civil Procedure 1.220.

Page 2 of 5

Amerigas removed the case to this Court under the Class Action Fairness Act
(“CAFA”), 28 U.S.C. § 1332(d)(2), 1332(d)(5)(B), which requires, inter alia, that the
amount in controversy exceed $5,000,000. As proof of the amount in controversy,
Amerigas provided an affidavit from employee Laurie Bergman attesting that Amerigas
has billed customers for over $14,000,000 in fuel recovery fees.1 All-South responded
with a Motion to Remand arguing that the Complaint defined the amount in controversy
as the amount Amerigas customers had actually paid in fuel recovery fees, not what
Amerigas had billed them. As Amerigas provided no evidence that its customers had
paid more than $5,000,000 of the $14,000,000+ billed, All-South maintained that
Amerigas failed to prove that the amount in controversy requirement had been met. On
review, the Magistrate Judge agreed with All-South that there was no way to know
whether Amerigas’s customers had paid over $5,000,000 in fuel recovery fees solely
from evidence of what Amerigas had billed them.

Thus, the Magistrate Judge

concluded that Amerigas failed to show by a preponderance of the evidence that the
amount in controversy requirement was satisfied and recommended remand.
Amerigas filed a timely Objection to the Magistrate Judge’s Report and
Recommendation, arguing that it has in fact shown by a preponderance of the evidence
that the amount in controversy exceeds $5,000,000, because it is reasonable and “more
likely than not” that its customers paid at least $5,000,000 of the $14,000,000+ it billed
them. Additionally, Amerigas asks the Court to consider a new affidavit—which was not
before the Magistrate Judge—attesting to the fact that its customers actually paid over
$8,000,000 in fuel recovery fees. In response, All-South objects to Amerigas’s new
evidence, and requests that the Court adopt the Magistrate Judge’s Report and
Recommendation.
1
Ms. Bergm an’s explanation of the am ount in controversy is less than clear. She states in her
affidavit that Am erigas “realized” over $14,000,000 in fuel recovery fees, and defines the am ount “realized”
as “the am ount billed to custom ers less any credits given to custom ers.” She further states that
“approxim ately 96.5% of the fuel recovery fee billed to custom ers . . . was for an order that included the
delivery of propane . . . . [and] 3.5% . . . was for services.” As the Magistrate Judge correctly observed,
however, the am ount “realized” figure sim ply represents the am ount of m oney Am erigas ultim ately asked its
custom ers to pay. To avoid unhelpful accounting sem antics, therefore, the Court will refer to the $14,000,000+
Am erigas ultim ately asked its custom ers to pay as the am ount it “billed” to its custom ers.

Case No. 3:15cv9/MCR/CJK

Page 3 of 5

Discussion
“[I]in determining whether to accept, reject, or modify the magistrate’s report and
recommendations, the district court has the duty to conduct a careful and complete
review.”

Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam)

(quoting Nettles v. Wainwright, 677 F.2d 404 at 408 (5th Cir. 1982) (en banc)). Where a
party objects to the report and recommendation, a district judge “shall make a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C).
Section 1332, title 28, of the United States code provides, inter alia, that the
district court shall have original jurisdiction in any class action “in which the matter in
controversy exceeds the sum or value of $5,000,000, exclusive of interests and costs.”
“A court’s analysis of the amount-in-controversy requirement focuses on how much is in
controversy at the time of removal, not later.” Pretka v. Kolter City Plaza II, Inc., 608
F.3d 744, 751 (11th Cir. 2010). When determining whether the $5,000,000 threshold
has been met, “[a] court may rely on evidence put forward by the removing defendant,
as well as reasonable inferences and deductions drawn from that evidence.” S. Fla.
Wellness, Inc. v. Allstate Ins. Co., 745 F.3d 1312, 1315 (11th Cir. 2014). “The amount
in controversy is not proof of the amount the plaintiff will recover. Rather, it is an
estimate of the amount that will be put at issue in the course of the litigation.” Pretka,
608 F.3d at 751. “‘Where, as here, the plaintiff has not pled a specific amount of
damages, the removing defendant must prove by a preponderance of the evidence that
the amount in controversy exceeds the jurisdictional requirement.’” Id. at 752 (quoting
Williams v. Best Buy Co., Inc., 269 F.3d 1316, 1319 (11th Cir. 2001)).
Based on the parties’ submissions, the Court finds that Amerigas has failed to
prove by a preponderance of the evidence that the amount in controversy exceeds
$5,000,000. According to the Complaint, the amount of fees paid is the amount in
controversy. Amerigas, however, offered evidence only of the billed amount. While the
amount billed—over $14,000,000—is well in excess of the amount in controversy
requirement, and the filing of this lawsuit suggests that some portion of that billed
Case No. 3:15cv9/MCR/CJK

Page 4 of 5

amount was paid, Amerigas offered no evidence to the Magistrate Judge of what was
actually paid. Without that evidence, it is no more likely that customers paid over
$5,000,000 than it is that they paid less. In other words, in the absence of at least some
evidence of the amount paid, assigning a value to the amount in controversy would
require the Court to pluck a number from thin air. The undersigned agrees with the
Magistrate Judge that such speculation cannot satisfy Amerigas’s burden on removal.
Furthermore, the Court declines to consider Amerigas’s new affidavit—which
was not presented to the Magistrate Judge—attesting that its customers actually paid
over $8,000,000 in fuel recovery fees. Amerigas had access to the evidence it now
seeks to have considered while this matter was pending before the Magistrate Judge,
as the new affidavit shows that Amerigas calculated the amount paid in fuel recovery
fees based on records kept in the normal course of business before this lawsuit was
filed. Moreover, All-South explicitly argued in its Motion to Remand that Amerigas’s
evidence that it billed customers over $14,000,000 in fuel recovery fees was insufficient
to prove the amount in controversy, because there was no way to know whether its
customers had actually paid over $5,000,000 of that billed amount. Thus, Amerigas has
no excuse for failing to offer evidence of the amount paid when this matter was before
the Magistrate Judge.2 It would turn the magistrate judge referral process on its head to
permit Amerigas to use the Magistrate Judge’s Report and Recommendation merely to
identify weaknesses in its case, so that it may shore them up later by presenting
additional evidence to the District Judge.

“[T]o consider evidence not previously

presented to the magistrate judge would effectively nullify the magistrate judge’s
consideration of the matter and would not help to relieve the workload of the district
court.” Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009) (quoting United States
2

The Court recognizes that 28 U.S.C. § 1446(b) provides that a defendant m ay, in certain
circum stances, rem ove a case even after the initial thirty day filing window if the case’s rem ovability is
subsequently ascertained. See Pretka, 608 F.3d at 760. However, the traditional rule is that “a defendant
cannot show that a previously non-rem ovable case ‘has becom e rem ovable’ as a result of a docum ent created
by the defendant.” Id. at 761; see § 1446(b). (stating that “a notice of rem oval m ay be filed within 30 days after
receipt by the defendant. . . [of a] paper from which it m ay first be ascertained that the case is one which is
or has becom e rem ovable” (em phasis added)).
Case No. 3:15cv9/MCR/CJK

Page 5 of 5

v. Howell, 231 F.3d 615, 622 (9th Cir. 2000)). “Systemic efficiencies would be frustrated
and the magistrate judge’s role reduced to that of a mere dress rehearser if a party were
allowed to feint and weave at the initial hearing, and save its knockout punch for the
second round.” Id. (quoting Howell, 231 F.3d at 622).
Accordingly, it is now ORDERED:
1.

The Magistrate Judge’s Report and Recommendation is adopted and

incorporated by reference in this order.
2.

Plaintiff’s “Motion to Remand” is GRANTED and this matter is remanded

to the state court from which it was removed.
3.

Plaintiff’s “Amended Motion for Jurisdictional Discovery” is DENIED AS

MOOT.
4.

The clerk is directed to close the file.

DONE AND ORDERED this 30th day of July, 2015.

s/

M. Casey Rodgers

M. CASEY RODGERS
CHIEF UNITED STATES DISTRICT JUDGE

Case No. 3:15cv9/MCR/CJK