Marcenaro et al v. Creative Hairdressers Inc.

Filing 10

OPINION AND ORDER granting 4 Motion to Remand. This case is closed and all pending motions are denied as moot. Signed by Judge Kenneth A. Marra on 4/23/12. (tp) Modified text on 4/23/2012 (tp).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 12-60236-CIV-MARRA/BRANNON
THAMARA MARCENARO AND MARIA
ISABEL BUCHILLON,
Plaintiffs,
vs.
CREATIVE HAIRDRESSERS INC.,
a/k/a HAIR CUTTERY,
Defendant.
____________________________________/
OPINION AND ORDER
This cause is before the Court upon Plaintiffs Thamara Marcenaro and Maria Isabel
Buchillon’s (“Plaintiffs”) Motion to Remand Matter (DE 4). The motion is fully briefed and ripe
for review. The Court has carefully considered the motion and is otherwise fully advised in the
premises.
I. Background
Plaintiffs filed a two-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, Plaintiffs, who are of Hispanic origin, were employees of Defendant. (Compl. ¶ 9.)
During their employment, Plaintiffs “were subjected to discrimination and harassment from
Defendant, based on their Hispanic origin, including derogatory comments, insults” and “told not
to speak Spanish in the office with each other.” (Id. at ¶ 11.) Supervisors also sent Plaintiffs
home earlier than similarly situated non-Hispanic employees. (Id. at ¶ 12.) When Plaintiffs

objected to this conduct, they were terminated shortly thereafter, on December 3, 2010. (Id. at ¶
13.)
The Complaint seeks damages, including “damages to reputation, confidence and selfesteem;” “loss of past and future income;” “loss of future earning capacity;” “loss of other fringe
benefits;” “stress, anxiety and emotional distress;” “significant past and future pain and
suffering” and “other financial losses.” (Id. at ¶ ¶ 17, 22.) Plaintiffs also seek “reasonable
attorney’s fees, expert fees, costs and expenses related to this litigation” and “any other lawful
and equitable relief.” (Id. at ¶ 18, 23.)
Defendant, on the basis of diversity jurisdiction, removed the case to this Court on
February 8, 2012. (Notice of Removal, DE 1.) Plaintiffs have now moved to remand the action.
While Plaintiffs do not dispute the existence of diverse citizenship, Plaintiffs state that this “case
should not have been removed because the amount in controversy does not nearly exceed
$75,000” and Defendant has attempted to satisfy the amount in controversy requirement with
“speculative submissions.” (Mot. at 1-2.) Defendant responds that Plaintiffs have “intentionally
tried to avoid federal court jurisdiction by hiding the extent of their damages from their
Complaint” and “federal courts have consistently allowed a removing party to estimate potential
damages in circumstances where the Plaintiffs’ Complaint lacks any damages calculation, and
the amendments to the removal statute now specifically allow the moving party to ‘assert the
amount in controversy.’” (Resp. at 2, DE 7.) (emphasis in original).
Attached to Defendant’s notice of removal is the affidavit of Amanda Naté Venkatesan,
the senior associate relations advisor for Defendant. (Venkatesan Aff. ¶ 2, DE 1-3.) According to
Ms. Venkatesan, Ms. Buchillon was employed by Defendant from July 12, 2004 until December
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3, 2010. In 2010, Ms. Buchillon earned $19,596.88, which varied monthly based on
commissions. (Id. at ¶ 6.) Ms. Marcenaro was employed by Defendant from February 23, 2009
until December 3, 2010. Ms. Marcenaro earned $9,225.17, which also varied monthly based on
commissions. (Id. at ¶ 7.)
II. Discussion
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

1

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 initial pleading. (Notice of Removal ¶ 2.)
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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.”)
A. Back pay calculation
In calculating back pay, Defendant posits that Plaintiff Buchillon’s back pay claim could
be approximately $42,459.82 if the Court were to use a time period of her termination date until
an estimated trial date of February 2013. (Notice of Removal ¶ 17; Resp. at 6-7.) Plaintiffs
object to this calculation on two bases: (1) Defendant’s calculation of Plaintiff Buchillon’s back
pay is speculative and (2) Defendant’s calculation fails to take into account Plaintiff Buchillon’s
duty to mitigate. (Mot. at 5.)
Here, the Court finds that it is appropriate to use the trial date of February 2013 in order
to calculate the probable back pay of Plaintiff Buchillon.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). With respect to Plaintiffs’ duty to mitigate damages, the Court
concludes that the burden is on Plaintiff Buchillon to demonstrate that mitigation of damages has
2

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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occurred. See Taylor v. Air Atlanta Icelandic, No. 11–60289–CIV, 2011 WL 1131086, at * 2
(S.D. Fla. Mar. 25, 2011); Foster v. Resources for Human Development, Inc., No.
8.07-cv-01096-T-17-EAJ, 2007 WL 2225811, at * 6 (M.D. Fla. July 31, 2007). Plaintiff
Buchillon has not met this burden.3
Based on the evidence provided by Defendant, Plaintiff Buchillon’s claim for back pay
from December 2010 to February 2013 is approximately $42,459.82.
B. Calculation of Compensatory and Punitive Damages and Equitable Relief
Plaintiffs contend that, with respect to compensatory damages, punitive damages and
equitable relief, Defendant has failed to provide support for determining the amount of potential
damages and therefore it is impossible to conclude that it is more likely than not that the amount
in controversy exceeds $75,000. (Mot. at 8; Reply at 6-7.) In contrast, Defendant asserts that
because an award of compensatory damages could easily match the amount of economic
damages, the amount in controversy exceeds $75,000. Additionally, Defendant states that the
FCRA permits each Plaintiff to recover up to $100,000.00 in punitive damages, and because
neither Plaintiff has indicated they are seeking less than the statutory maximum, the amount in
controversy is met. (Resp. at 10.) Plaintiff responds that there is no way to assess the potential
for punitive damages. (Reply at 6, DE 8.)
Compensatory damages do not include backpay, but may include, but is not limited to,
damages for mental anguish, loss of dignity, and other intangible injuries. Florida Statute §

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Plaintiffs’ reliance on Fusco v. Victoria’s Secret Store, LLC, 806 F. Supp. 2d 1240
(M.D. Fla. Aug. 19, 2011) is unpersuasive. In that case, the plaintiff provided the court with an
affidavit regarding mitigation.
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760.11(5). Here, there is no information before the Court that allows it to assess or even make
"reasonable deductions, reasonable inferences, or other reasonable extrapolations" as to the type
or amount of compensatory damages to which Plaintiffs might be entitled. Pretka, 608 F.3d at
754. Based on the dearth of any evidence before the Court, the Court rejects Defendant’s
suggestion that compensatory damages would necessarily equal the amount of economic
damages.4 (Resp. at 9.)
Likewise, with respect to punitive damages, the Court disagrees with Defendant that the
mere request for punitive damages by Plaintiffs satisfies the $75,000 jurisdictional threshold.
(Resp. at 10.) Drawing such a conclusion would be nothing more than speculation and is
impermissible. See Desmond v. HSBC Card Services, Inc., No.:09-cv-1272-T-23TBM, 2009
WL 2436582, at * 2 (M.D. Fla. Aug. 6, 2009) (“if the prayer for punitive damages satisfies the
amount in controversy requirement, nearly every . . . case is immediately removable”). The Court
finds it equally speculative to assume that the equitable relief sought by Plaintiffs can establish
the amount in controversy. (Resp. at 12.) Cf. Armstrong v. Charlotte County Bd. of County
Commissioners, 273 F. Supp. 2d 1312, 1314 (M.D. Fla. 2003) (noting that reinstatement is the
preferred remedy in a wrongful discharge case, but “extenuating circumstances” may warrant the
court to award a plaintiff front pay in lieu of reinstatement).

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The Court also rejects Defendant’s reliance on jury awards for compensatory damages in
“similar cases.” (Notice of Removal ¶ 19.) With no factual record on which to base a finding of
intangible injuries, the Court cannot extrapolate from these jury verdicts. See Moore v. CNA
Found., 472 F. Supp. 2d 1327, 1332 (M.D. Ala. 2007) (concluding that the defendant's
“representative cases” were “so factually and legally distinguishable from this case that it is
impossible to draw any reasonable conclusions from them”).
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C. Attorney’s Fees
Defendant argues that, in calculating the amount in controversy, the Court should
consider attorney’s fees. At a minimum, Defendant contends that, in the context of removal,
reasonable fees should be calculated to be at least one-third of any damage award, and it is
permissible for defense counsel to submit an estimate of a plaintiff’s attorney’s fees. (Resp. at
11-12.) Plaintiffs, however, claim that attorney’s fees should not be considered in determining
the amount of controversy in FCRA claims because the FCRA only allows “fees” to be awarded
as part of “costs.” Plaintiffs also note that Defendant has failed to provide actual evidence in
support of its calculation regarding attorney’s fees. (Mot. at 9-10.)
Although Defendant contends that the attorney’s fees in this case will amount to $62,500,
Defendant does not provide any evidence to support its assertion. Instead, Defendant merely
provides statements in its memorandum. (Resp. at 12.) As such, the Court will not rely on this
proffered amount. See SUA Ins. Co. v. Classic Home Builders, LLC, 751 F. Supp. 2d 1245,
1256 (S.D. Ala. 2010) (quoting Pretka, 608 F.3d at 755) (failure of the defendant to submit
affidavits, declarations or other documentation regarding the amount of attorney’s fees makes
claimed amount in controversy conclusory); see also Cohen v. Office Depot, 204 F.3d 1069,
1080 n.10 (11th Cir. 2000) (“Arguably, when the amount in controversy substantially depends on
a claim for attorney fees, that claim should receive heightened scrutiny.”) While it is true “that 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, it is equally true that “[t]he absence of
factual allegations pertinent to the existence of jurisdiction is dispositive and, in such absence,

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the existence of jurisdiction should not be divined by looking to the stars.”5 Lowery, 483 F.3d at
1215. For this reason, the Court finds that attorney’s fees does not assist in meeting the
jurisdictional requirement.
Lastly, the Court 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. The Supreme Court has held that,
absent unusual circumstances, attorney's fees should not be awarded when the removing party
has an objectively reasonable basis for removal. Martin v. Frankling Capital Group, 546 U.S.
132, 136 (2005). “The appropriate test for awarding fees under § 1447(c) should recognize
Congress' desire to deter removals sought for the purpose of prolonging litigation and imposing
costs on the opposing party” and this determination “should turn on the reasonableness of the
removal.” Id. at 140-41. Here, the Court notes that Defendant’s legal arguments were colorable
and reasonable, especially given the recent development of removal law since the issuance of the
2010 Pretka decision. Cf. Letner v. Unum Life Ins. Co. of Am., 203 F. Supp .2d 1291, 1302
(N.D. Fla. 2001) (awarding attorney's fees and costs when case was removed without scintilla of
legitimate evidence). Moreover, the Court finds that Defendant did not remove the case for the
purpose of prolonging litigation or imposing costs. Therefore, an award of attorney's fees and
costs is not warranted.

5

Because Defendant has failed to provide a non-conclusory amount of attorney’s fees, the
Court need not address the remaining arguments (i.e., whether attorney’s fees should be
calculated from the date of removal or through the end of the case and whether attorney’s fees
can be considered in determining the amount in controversy in FCRA claims.)
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III. Conclusion
Accordingly, it is hereby ORDERED AND ADJUDGED that Plaintiffs’ Motion to
Remand Matter (DE 4) is GRANTED. The above-styled action is REMANDED back to the
Circuit Court for the Seventeenth Judicial Circuit in and for Broward County, Florida. All
pending motions are DENIED AS MOOT. The Clerk shall CLOSE this case.
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County,
Florida, this 23rd day of April, 2012.
______________________________________
KENNETH A. MARRA
United States District Judge

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