Design Center Of The Americas, LLC v. Mike Bell Incorporated

Filing 20

ORDER granting in part and denying in part 6 Plaintiff's Motion to Remand. This case is remanded to Broward County State Court. See Order for details. Signed by Judge James I. Cohn on 10/20/2014. (drv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 14-61825-CIV-COHN/SELTZER
DESIGN CENTER OF THE AMERICAS, LLC,
Plaintiff,
vs.
MIKE BELL INCORPORATED,
Defendant.
__________________________________/
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION TO REMAND
THIS CAUSE is before the Court on Plaintiff’s Motion to Remand [DE 6]
(“Motion”). The Court has considered the Motion, Defendant’s Response [DE 14], and
Plaintiff’s Reply [DE 15], and is otherwise advised in the premises. For the reasons that
follow, the Motion will be GRANTED in part to the extent that the Court orders the case
remanded, but DENIED in part to the extent that the Court will not award attorneys’
fees.
I.

Background
This suit arises out of the failure of a store that, as at least part of its business,

sold consigned furniture. 1 [DE 1-1 at 5.] Plaintiff, the Design Center of the Americas, is
the store’s landlord. [Id. at 4.] Defendant consigned furniture to the store for sale. [Id.
at 5.] Plaintiff’s Complaint describes a relevant provision of the lease agreement
between Plaintiff and the store:

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For the purposes of this Motion, the Court accepts as true the facts alleged in
Plaintiff’s Complaint [DE 1-1 at 3–8].

[P]ursuant to Section 34.10 of the Lease, Tenant granted to
Landlord a first and unsubordinated lien and security interest
on all property of the Tenant ever placed in the Premises to
secure the payment of Rent and damages or loss to the
Premises (the “Consensual Lien”). The Consensual Lien
was perfected by the filing of a form UCC-1 on May 30,
2008. . . . Thereafter, on February 19, 2013, Landlord filed a
UCC-3 continuation of its Consensual Lien.
[Id. at 4.]
Pursuant to this term, when the store stopped paying rent, Plaintiff asserted a
lien in Defendant’s consigned property. [Id. at 5.] Plaintiff has since taken possession
of the store’s erstwhile premises and the property Defendant consigned to the store.
[Id. at 6.] Defendant wants the consigned property back. [Id.]
Plaintiff sued for declaratory relief in Broward County Circuit Court, asking that
court to determine that (1) Plaintiff has a valid lien on the property; (2) Plaintiff’s lien is of
a higher priority than any lien Defendant may have on the property; (3) Plaintiff may sell
the consigned property to satisfy the store’s obligations to it; and (4) Plaintiff will owe
nothing to Defendant as a result of the sale. [Id. at 7–8.] Defendant has
counterclaimed for contrary declaratory relief and for conversion. [DE 9 at 5–7.]
Defendant removed Plaintiff’s suit to this Court on August 11, 2014. [DE 1 at 1.]
Plaintiff now seeks remand, arguing that this case does not meet 28 U.S.C. § 1332’s
amount-in-controversy requirement. Plaintiff also seeks the attorneys’ fees incurred in
bringing this Motion.
II.

Remand is appropriate.

Federal courts are courts of limited jurisdiction. Federal jurisdiction exists only
when a controversy involves either a question of federal law or diversity of citizenship
between the parties. See 28 U.S.C. §§ 1331–32. Removal statutes are strictly
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construed. Sygenta Crop. Prot. Inc. v. Henson, 537 U.S. 28, 32 (2002). Courts should
remand all cases where subject matter jurisdiction is in doubt. Univ. of S. Ala. v. Am.
Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999).
The parties here do not contend that their controversy involves a question of
federal law. Accordingly, this Court has jurisdiction over the instant case only if diversity
jurisdiction exists. Diversity jurisdiction exists when the suit is between citizens of
different states and the amount in controversy exceeds $75,000, exclusive of interest
and costs. See 28 U.S.C. § 1332. If only declaratory and injunctive relief is at issue,
the amount in controversy is measured by the value of the object of the litigation, from
the plaintiff’s perspective. Ericsson GE Mobile Communications, Inc. v. Motorola
Communications & Electronics, Inc., 120 F.3d 216, 218–19 (11th Cir. 1997). There is
no dispute in this case that the parties are of diverse citizenship. Therefore, the only
jurisdictional issue concerns whether the amount in controversy requirement has been
satisfied.
“[A] removing defendant is not required to prove the amount in controversy
beyond all doubt or to banish all uncertainty about it.” Pretka v. Kolter City Plaza II, Inc.,
608 F.3d 744, 753 (11th Cir. 2010). Rather, where a plaintiff has not pleaded a specific
amount of damages, the removing defendant must establish the amount in controversy
by a preponderance of the evidence. Williams v. Best Buy Co., 269 F.3d 1316, 1319
(11th Cir. 2001). To establish the amount in controversy by a preponderance of the
evidence, “Defendants may introduce their own affidavits, declarations, or other
documentation—provided of course that removal is procedurally proper.” Pretka, 608
F.3d at 755.

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An important issue emerged in the briefing of this matter: whether a court, on a
plaintiff’s motion to remand, should consider a defendant’s counterclaim in determining
the amount in controversy. The Court discerns no controlling opinion from the Eleventh
Circuit. However, the Court is persuaded by the well-researched and well-reasoned
decision of the Middle District of Alabama in Conference Am., Inc. v. Q.E.D. Int’l Inc., 50
F. Supp. 2d 1239 (M.D. Fla. 1999), that a “[d]efendant’s [c]ounterclaim should not be
considered in determining the amount in controversy in the context of removal
jurisdiction.” Id. at 1242.
Defendant cites two Eleventh Circuit cases, South Florida Wellness, Inc. v.
Allstate Ins. Co., 745 F.3d 1312 (11th Cir. 2014) and Pretka v. Kolter City Plaza II, Inc.,
608 F.3d 744 (11th Cir. 2000), in its response for the proposition that “where, as here,
actual damages are sought, by way of counterclaim or otherwise” [DE 14 at 4], the
Court should consider these damages in determining the amount in controversy. The
Court has scrutinized these cases. They do not concern the role of counterclaims in the
amount-in-controversy analysis, and therefore are not instructive.
Here, Plaintiff has not pleaded a specific amount of damages. Therefore, the
burden is on Defendant to prove by a preponderance of the evidence that this case
satisfies 28 U.S.C. § 1332’s amount-in-controversy requirement. Defendant has not
done so.
In support of removal, Defendant offers a brief, conclusory affidavit from its
President, Joann Westwater [DE 10-1]. Ms. Westwater affirms that based upon her
“experience as President of Mike Bell” and “knowledge of Mike Bell’s properties and
products” that the furniture at issue in this litigation “had a collective total fair value of in

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[sic] excess of $77,000.00.” [Id.] In support of remand, Plaintiff offers a similarly
conclusory affidavit from its “Director of Design Services,” an interior designer named
Alex Matamoros [DE 6-1]. Mr. Matamoros states that the furniture is worth no more
than $25,000, if sold pursuant to the statutory procedures available. [Id. at 4.] Mr.
Matamoros provides some support for his authority on this matter, observing that he has
been licensed as an interior designer since 2004, worked for Plaintiff since 2008, and
has cultivated a familiarity with the products offered by its tenants. [Id. 1–2.]
In weighing these two conflicting affidavits, the Court determines that the
evidence that this case satisfies the amount-in-controversy requirement is at most in
equipoise. Because Defendant bears the burden of proving the propriety of removal by
a preponderance of the evidence, this is not enough. See James v. Otis Elevator Co.,
854 F.2d 429, 432 n.3 (11th Cir. 1988). The Court will therefore grant Plaintiff’s Motion
in part and remand this case to the Broward County state court from which it came.
III.

The Court will not award costs or attorneys’ fees.

Plaintiff also moves this Court for an order directing Defendant to pay the costs
and attorneys’ fees it incurred in responding to Defendant’s Notice of Removal. Title 28
U.S.C. § 1447(c) provides that if an action is remanded, a district court may award
Plaintiff “payment of just costs and any actual expenses, including attorney fees,
incurred as a result of the removal.” 28 U.S.C. § 1447(c). A court may award attorneys’
fees where the removing party lacked an objectively reasonable basis for seeking
removal. Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). Here, the Court
ultimately concludes that Defendant did not carry its burden to show that removal was
proper. Defendant did, however, have an objectively reasonable basis for seeking

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removal, in the form of Ms. Westwater’s aforementioned affidavit. The Court will
therefore decline to order Defendant to pay fees and costs.
IV.

Conclusion

In light of the foregoing, it is ORDERED AND ADJUDGED as follows:
1.

Plaintiff’s Motion to Remand [DE 6] is GRANTED to the extent that this

case shall be REMANDED to the Seventeenth Judicial Circuit in and for Broward
County, Florida. Plaintiff’s Motion to Remand [DE 6] is DENIED to the extent that it
requests an award of attorneys’ fees.
2.

The Clerk of Court is hereby directed to forward a certified copy of this

Order to the Clerk of the Seventeenth Judicial Circuit in and for Broward County,
Florida, re Case No. CACE 14-014413.
3.

The Clerk of Court is directed to CLOSE the case and DENY all other

pending motions as MOOT.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida this 20th day of October, 2014.

Copies provided to counsel of record via CM/ECF.

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