Morgan v. Sears, Roebuck and Company
OPINION AND ORDER denying 6 Motion to Remand. Signed by Judge Kenneth A. Marra on 6/29/2012. (ir)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 12-60055-CIV-MARRA/BRANNON
SEARS, ROEBUCK, AND COMPANY,
OPINION AND ORDER
This cause is before the Court upon Plaintiff James Morgan’s Motion to Remand and for
Attorneys’ Fees (DE 6). The motion is fully briefed and ripe for review. The Court has carefully
considered the motion and is otherwise fully advised in the premises.
Plaintiff filed a one-count Complaint in the Circuit Court of the 17th Judicial Circuit in
and for Broward County, Florida for damages, attorney’s fees and costs under the Florida Civil
Rights Act of 1992 (“FCRA”), Florida Statutes § 760. According to the allegations of the
Complaint, Plaintiff, who is black and of Jamaican origin, was a sales associate employed by
Defendant. (Compl. ¶ 3.) The Complaint alleges that on the night of August 17, 2008, Plaintiff
accepted a cash payment of approximately $5,000 from a customer. (Id. at ¶ 15.) Plaintiff
allegedly called a supervisor to have the large amount of cash removed, but the supervisor
refused to pick up the cash. (Id. at ¶¶ 15-16.) Later in the evening, after other employees had
access to the register, a different sales associate “closed out” the register with the excess cash,
discovering that the register was short approximately $1,000. (Id. at ¶¶ 18-19.) Plaintiff, who
was the only black employee in the department, was terminated for “violation of company
policy.” (Id. at ¶ 24.) The Complaint seeks judgment “for reinstatement or front pay, backpay,
lost benefits, interest, compensatory damages, punitive damages, attorneys’ fees and costs.” (Id.
at ¶ 32.)
Defendant, on the basis of diversity jurisdiction, removed the case to this Court on
January 12, 2012. (Notice of Removal, DE 1.) Attached to Defendant’s notice of removal is
Plaintiff’s Unverified Responses to Defendant’s First Set of Interrogatives, Plaintiff’s Verified
Responses to Defendant’s First Set of Interrogatives, and the Affidavit of Catherine Miller.
According to Plaintiff’s Responses, “Plaintiff earned $21,000 per year at Sears. Three years of
lost employment equals approximately $63,000 in back pay. Damages continue to accrue at
$1,750 per month.” (DE 1-4 at Response to Interrogatory No. 9.) Plaintiff has now moved to
remand the action.
It is axiomatic that federal courts are courts of limited jurisdiction. Russell Corp. v.
American Home Assur. Co., 264 F.3d 1040, 1050 (11th Cir. 2001). Removal jurisdiction is
construed narrowly with all doubts resolved in favor of remand. See Pacheco de Perez v. AT&T
Co., 139 F.3d 1368, 1373 (11th Cir. 1998). The removing party has the burden of demonstrating
the propriety of removal. Diaz v. Shepard, 85 F.3d 1502, 1505 (11th Cir. 1996). Where, as here,
a plaintiff's claims for damages are unspecified in the complaint, the “removing defendant must
prove by a preponderance of the evidence that the amount in controversy exceeds the
jurisdictional requirement.” Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir. 2001).
The sufficiency of the amount of controversy is determined at the time of removal. Pretka v.
Kolter City Plaza II, Inc., 608 F.3d 744, 751 (11th Cir. 2010) (the Court “focuses on how much is
in controversy at the time of removal, not later”). “[T[he pertinent question is what is in
controversy in the case, not how much the plaintiffs are ultimately likely to recover.” Id.
(quoting Amoche v. Guarantee Trust Life Insurance Co., 556 F.3d 41, 51 (1st Cir. 2009)). When
a case has been removed pursuant to paragraph one of 28 U.S.C. § 1446(b),1 the moving party
may provide additional evidence to satisfy its burden. Id. at 753-54. That stated, a defendant
may satisfy this requirement without additional evidence if it is “facially apparent from the
pleading itself that the amount in controversy exceeds the jurisdictional minimum.” Roe v.
Michelin North America, Inc., 613 F.3d 1058, 1061 (11th Cir. 2010) (internal quotation marks
omitted). “[A] removing defendant is not required to prove the amount in controversy beyond all
doubt or to banish all uncertainty about it.” Pretka, 608 F.3d at 754. In considering the
allegations and evidence of the parties, the Court may use “common sense” and make
“reasonable deductions, reasonable inferences, or other reasonable extrapolations.” Id. at 754,
770; see Roe, 613 F.3d at 1062 (“courts may use their judicial experience and common sense in
determining whether the case stated in a complaint meets federal jurisdictional requirements.”)
In calculating the amount in controversy, Defendant posits that Plaintiff’s back pay claim
could be over $75,000 if the Court were to use a time period commencing on her termination
date through an estimated trial date of May 2012. (Notice of Removal ¶ 14.) Here, the Court
finds that it is appropriate to use the trial date of May 2012 to calculate the probable back pay of
The instant case was removed pursuant to the first paragraph of 28 U.S.C. § 1446(b);
that is, within 30 days of service of the defendant being able to ascertain intelligently that the
action is removable. See Clingan v. Celtic Life Ins. Co., 244 F.Supp.2d 1298, 1302 (M.D. Ala.
Plaintiff.2 See Messina v. Chanel, Inc., No. 10–24518–CIV, 2011 WL 2610521, at * 2 (S.D. Fla.
July 1, 2011); Cashman v Host International, Inc., No. 8:10–cv–1197–T–30MAP, 2010 WL
4659399, at * 1 (M.D. Fla. Nov. 9, 2010); Deel v. Metromedia Restaurant Svcs., Inc., No.
3:05CV120/MCR, 2006 WL 481667, at * 3 (N.D. Fla. Feb. 27, 2006). Based on the evidence
provided by Defendant, Plaintiff’s claim for back pay from October 2008 to May 2012 is
Because backpay alone exceeds $75,000, the Court need not consider any other damages
sought by Plaintiff for the purpose of determining amount in controversy. The Court therefore
denies Plaintiff’s Motion to Remand. The Court also denies Plaintiff’s request for attorney’s fees
and costs pursuant to 28 U.S.C. § 1447(c) associated with the filing of this motion.
Accordingly, it is hereby ORDERED AND ADJUDGED that Plaintiffs’ Motion to
Remand Matter (DE 6) is DENIED. The Court also DENIES Plaintiff’s Motion for Attorney’s
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County,
Florida, this 29th day of June, 2012.
KENNETH A. MARRA
United States District Judge
In opposing the use of this trial date, Plaintiffs point to cases that rely upon Lowery v.
Alabama Power Co., 483 F.3d 1184 (11th Cir. 2007). (Mot. at 5-6.) However, in Pretka, the
Court stated that “Lowery did not say, much less purport to hold, that the use of deduction,
inference, or other extrapolation of the amount in controversy is impermissible” for purposes of
establishing the amount in controversy. Pretka, 608 F.3d at 753; see also Roe, 613 F.3d at 1062
(“courts may use their judicial experience and common sense in determining whether the case
stated in a complaint meets federal jurisdictional requirements.”)
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