Montanez v. East Coast Waffles, Inc.

Filing 24

ORDER granting 8 Motion to Remand; Remanding Case to the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County; Denying Request for Attorneys' Fees and Costs; Closing Case. Signed by Judge Beth Bloom on 6/12/2017. (ls)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 17-cv-60725-BLOOM/Valle
FRANKLIN MONTANEZ,
Plaintiff,
v.
EAST COAST WAFFLES, INC.,
Defendant.
__________________________________/
ORDER ON MOTION FOR REMAND
THIS CAUSE is before the Court upon Plaintiff Franklin Montanez’s (“Plaintiff” or
“Montanez”) Motion for Remand. ECF No. [8] (the “Motion”). These proceedings arise from an
action originally filed by Montanez in the Circuit Court of the Seventeenth Judicial Circuit in
and for Broward County. Montanez moves the Court to remand proceedings back to state court.
Defendant East Coast Waffles, Inc. (“Defendant” or “East Coast Waffles”) opposes the Motion.
For the reasons stated below, the Court grants Montanez’s Motion for Remand and denies the
request for attorneys’ fees made therein.
I.

BACKGROUND
On or about March 13, 2017, Montanez, a Florida resident, filed a Complaint against East

Coast Waffles, a corporation with its principal place of business in Georgia, in the Circuit Court
of the Seventeenth Judicial Circuit in and for Broward County, Florida. ECF No. [1] at ¶ 1. The
Complaint alleges that East Coast Waffles was negligent in allowing water to accumulate on the
floor of its premises, causing Montanez to slip and fall, sustaining serious personal injuries. ECF
No. [1-2] at ¶¶ 6, 10.

Case No. 17-cv-60725-BLOOM/Valle
East Coast Waffles timely filed a notice of removal on April 13, 2017 based on diversity
jurisdiction. Id. In its notice of removal, East Coast Waffles asserted that the amount in
controversy exceeded $75,000. Id. at ¶ 5. This assertion was based on a pre-suit settlement
demand of $100,000 by Montanez, which contemplated monetary compensation for bodily
injury, pain and suffering, loss of consortium, disfigurement, disability, mental anguish, past and
future medical expenses, lost wages, and impairment of ability to earn future wages. See ECF.
No. [1-3]. Montanez now moves for remand arguing that Defendant “relies entirely upon
Plaintiff’s pre-suit demand letter and negotiations” and that the amounts demanded in the presuit demand letter “contained ‘puffery’ and was never intended to liquidate Plaintiff’s uncertain
damages claim.” ECF No. [8] at ¶¶ 2, 3. In his Motion for Remand, Montanez also makes a
request for attorneys’ fees and costs in accordance with 28 U.S.C. § 1447(c). Id. at ¶ 4.
II.

LEGAL STANDARD
“A removing defendant bears the burden of proving proper federal jurisdiction.” Coffey

v. Nationstar Mortg., LLC, 994 F. Supp. 2d 1281, 1283 (S.D. Fla. 2014). District courts have
diversity jurisdiction over cases in which the parties are completely diverse and the amount in
controversy exceeds $75,000. 28 U.S.C. § 1332. “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 jurisdiction requirement.” Pretka v. Kolter
City Plaza II, Inc., 608 F.3d 744, 752 (11th Cir. 2010); see also 28 U.S.C. § 1332(a). “To
determine whether this standard is met, a court first examines whether it is facially apparent from
the complaint that the amount in controversy exceeds the jurisdictional requirement.” Miedema
v. Maytag Corp., 450 F.3d 1322, 1330 (11th Cir. 2006) (citation omitted). “If the jurisdictional
amount is not facially apparent from the complaint, the court should look to the notice of

2

Case No. 17-cv-60725-BLOOM/Valle
removal and may require evidence relevant to the amount in controversy at the time the case was
removed.” Id. (citation omitted).
“[A] removing defendant is not required to prove the amount in controversy beyond all
doubt or to banish all uncertainty about it.” See Pretka v. Kolter City Plaza II, Inc., 608 F.3d
744, 754 (11th Cir. 2010) (citations omitted). The use of reasonable inferences and deductions is
permissible to show the amount that is in controversy in the case. See id. “However, courts
must be mindful that removal statutes are construed narrowly and that uncertainties are resolved
in favor of remand.” Chiu v. Terminix Co. Int'l, L.P., 2016 WL 1445089, at *1 (M.D. Fla. Apr.
13, 2016) (citing Burns v. Windsor, 31 F.3d 1092, 1095 (11th Cir. 1994)).
III.

DISCUSSION
A. Motion for Remand
For the reasons explained below, the court finds that East Coast Waffles has not shown

by a preponderance of the evidence that the amount in controversy exceeds $75,000. Absent
such a showing, this Court lacks jurisdiction.
In opposing Montanez’s Motion to Remand, Defendant relies in part on Lutins v. State
Farm Mutual Auto. Ins. Co., 2010 WL 6790537, *1 (M.D. Fla. Nov. 4, 2010). ECF No. [15] at
5-6. In Lutins, the defendant removed based on diversity jurisdiction after the plaintiff filed a
complaint in state court that did not specify the amount sought in damages. Id. Before filing the
complaint, the plaintiff sent the defendant a demand letter for $200,000, consisting of “medical
costs” and future surgery estimates ranging between $75,000 and $90,000. Id. The plaintiff
moved to remand on the grounds that the defendant failed to demonstrate that the amount in
controversy met the threshold required for federal diversity jurisdiction. Id. The court denied

3

Case No. 17-cv-60725-BLOOM/Valle
the motion for remand, finding that the pre-suit demand letter, coupled with “common sense and
judicial experience,” supported a finding that the amount in controversy was met. Id.
Here, as in Lutins, the complaint does not specify the amount in damages, so the Court
may look to East Coast Waffles’ notice of removal and the accompanying demand letter. See
Miedema, 450 F.3d at 1330. However, the purported facts represented in these documents differ
from those in Lutins in one important aspect: although Montanez demanded $100,000 to settle,
the bills provided show only $7,645 in incurred medical expenses, well below the $75,000
amount in controversy threshold. See ECF No. [15] at 7 (referring to the demand package that
was attached to Montanez’s demand letter) (citing ECF Nos. [15-3], [15-4]). East Coast Waffles
nevertheless emphasizes that the demand package accompanying Montanez’s demand letter
forecasts future medical costs, such as “x-rays, therapy, and MRI studies [that] will cost
approximately $3,500 per year at present cost” and “[e]pidural injections [that will] cost
approximately $2,000 each.” Id. at 7 (emphasis in original). According to East Coast Waffles,
“[w]hen Plaintiff’s outstanding medical charges are combined with even a portion of the amount
of alleged future treatment, this quantifiable medical expense amount alone . . . exceeds the
jurisdictional amount in controversy.” Id. at 8 (emphasis added). However, in contrast to the
specific surgery estimates between $75,000 and $90,000 in Lutins, East Coast Waffles makes no
attempt to actually quantify the anticipated medical expenses upon which it relies. Indeed, in
addition to its lack of any estimate of those anticipated medical expenses, East Coast Waffles’
summary of the demand package undercuts the claim that an accurate quantification of them is
possible. See id. at 7 (“This treatment is most likely to consist of future therapy . . . and the
probability of new MRI studies.”) (emphasis added); cf. Chiu, 2016 WL 1445089, at *3 (“The
pre-suit demand letter states that Plaintiff’s future medical treatment could include chiropractic

4

Case No. 17-cv-60725-BLOOM/Valle
care, massage therapy, electric muscle stimulation, epidural blocks, myelograms, MRSs, surgery,
physical therapy, and medications. This future medical treatment is valued at $803,638.84.”)
(emphasis added). The Court finds this determinative under the circumstances. See Olivio v. Big
Lots Stores, Inc., 2012 WL 7151222, at *2 (M.D. Fla. Dec. 27, 2012) (noting that the plaintiff’s
demand letter “did not include an explanation of how she arrived at her $295,000 damage
calculation[] [and] failed to estimate the cost of future expenses (i.e., future medical treatment,
expected lost wages, etc.)”) (emphasis added); see also Reynolds v. Busch Entm't Corp., 2003
WL 25569730, at *5 (M.D. Fla. June 18, 2003) (“Although the Plaintiff's demand letter makes
one specific statement concerning Plaintiff's annual salary, the remaining allegations in the letter
do not set forth any specific details as to the amount of damages. Instead, the demand letter
merely makes broad statements concerning the types of injuries and treatments which may be
required.”). But see Mick v. De Vilbiss Air Power Co., 2010 WL 5140849, at *2 (M.D. Fla. Dec.
14, 2010) (holding that the plaintiff’s demand letter demanding $175,000 and setting forth past
medical bills of $11,000 and a demonstrated wage loss of $28,000 “contain[ed] sufficient facts to
evaluate Plaintiff’s demand that Defendant pay $175,000 to settle the claim” and was “evidence
of Plaintiff’s view of the amount in controversy”).
To be sure, to the extent that East Coast Waffles relies solely on the $100,000 settlement
demand, see ECF No. [1] at ¶ 5, this is not enough. See generally Wilson v. Target Corp., 2010
WL 3632794, at *3 (S.D. Fla. Sept. 14, 2010) (“[P]re-suit settlement offers may not be
determinative, in and of themselves, of the amount in controversy.”); Mick, 2010 WL 5140849,
at *2 (“Indeed, not every demand letter is persuasive in determining the amount in controversy.
A demand letter devoid of facts enabling the receiver to evaluate the claim may be considered
nothing more than mere posturing.”) (internal quotation marks and citation omitted). Normally,

5

Case No. 17-cv-60725-BLOOM/Valle
the “Court gives preference to the plaintiff’s own assessment of the value of [his] case.”
Castellanos v. Target Corp., 2011 WL 384292, at *3 (S.D. Fla. Feb 3, 2011). In this matter,
however, Montanez asserts that the amounts demanded in his demand letter contained “puffery”
and were never intended to liquidate his uncertain damages claim. ECF No. [8] at ¶ 3. Given
this assertion, and in light of the fact that Montanez’s medical records and bills only reflect
$7,645 in incurred medical expenses, the settlement demand does not satisfy East Coast Waffles’
burden to show by a preponderance of the evidence that the amount in controversy exceeds
$75,000.
Defendant further relies on a more comprehensive approach that, “when taking into
account the allegations of damages in the Complaint, Plaintiff’s $100,000 pre-suit demand, the
extent of his injuries, Plaintiff’s medical expenses, a potential lost wage claim, a loss of earning
capacity claim and Plaintiff’s future life and work-life expectancy, it is more likely than not that
the amount in controversy in this matter exceeds $75,000.” ECF No. [15] at 9. However, in the
absence of supporting facts, mere beliefs and speculations regarding the general allegations made
in the Complaint are insufficient. See Lowery v. Alabama Power Co., 483 F.3d 1184, 1214-15
(11th Cir. 2007). “The absence of factual allegations pertinent to the existence of jurisdiction is
dispositive and, in such absence, the existence of jurisdiction should not be divined by looking to
the stars. Neither the defendants nor the court may speculate in an attempt to make up for the
notice’s failings.” Justice v. Jeff Lindsey Communities, Inc., 2011 WL 744773, at *3 (M.D. Ala.
Feb. 25, 2011) (quoting Lowery, 483 F.3d at 1215); see also, e.g., Sibilia v. Makita Corp., 674 F.
Supp. 2d 1290, 1292-93 (M.D. Fla. 2009) (finding insufficient and rejecting as “mere
speculation” the defendant’s contention that “the severe nature of Plaintiff’s injuries and the
damages Plaintiff seeks[] make it clear that Plaintiff’s damages exceeds $75,000”).

6

Case No. 17-cv-60725-BLOOM/Valle
Overall, in light of Montanez’s denial of the $100,000 pre-suit demand figure as an
accurate depiction of damages, the Complaint and the medical expenses outlined in the demand
package accompanying Montanez’s demand letter do not demonstrate by a preponderance of the
evidence that the amount in controversy is over $75,000. See Barker v. Dollar Gen., 778 F.
Supp. 2d 1267, 1269 (M.D. Ala. 2011) (“Where plaintiff and defendant clash about jurisdiction,
uncertainties are resolved in favor of the remand.”) (quoting Burns, 31 F.3d at 1095). The Court
notes East Coast Waffles’ final argument that Montanez, in order to avoid this Court’s
jurisdiction, has left “glaringly absent from [his] Motion to Remand [an] allegation that [his]
claim does not exceed $75,000.” ECF No. [15] at 8 (emphasis in original). However, the burden
of showing that the amount in controversy exceeds $75,000 rests upon the defendant. See
Coffey, 994 F. Supp. 2d at 1283. East Coast Waffles has not met its burden of proving that the
amount in controversy exceeds the jurisdiction threshold.
B. Request for Attorneys’ Fees and Costs
Montanez’s Motion for Remand also requests an award of attorneys’ fees and costs. ECF
No. [8] at ¶ 4 (quoting 28 U.S.C. § 1447(c)). Under 28 U.S.C. § 1447(c), “an order remanding
the case may require payment of just costs and any actual expenses, including attorney fees,
incurred as a result of the removal.” (Emphasis added). See generally Fernandez v. Pilot Travel
Ctrs LLC, 2007 WL 3379848 at *2 (M.D. Fla. Nov. 14, 2007) (explaining that the use of the
word “may” under 28 U.S.C. § 1447(c) dictates that the court “has the authority but not the
obligation to include an award of attorney’s fees in an order remanding a case to state court”).
Here, however, Montanez has made no argument in support of his request for attorneys’ fees and
costs and has failed to reply to East Coast Waffles’ arguments against the request, which are
well-taken. See ECF No. [15] at 8-9. Moreover, the court finds no basis to grant the request for

7

Case No. 17-cv-60725-BLOOM/Valle
attorneys’ fees and costs—such as the lack of an objectively reasonable basis in East Coast
Waffles’ removal of this case—given Montanez’s pre-suit demand letter. See Martin v. Franklin
Capital Corp., 546 U.S. 132 (2005) (“Absent unusual circumstances, courts may award
attorney’s fees under § 1447(c) only where the removing party lacked an objectively reasonable
basis for seeking removal. Conversely, when an objectively reasonable basis exists, fees should
be denied.”).
IV.

CONCLUSION
For the foregoing reasons, it is ORDERED AND ADJUDGED as follows:
1. Montanez’s Motion for Remand, ECF No. [8], is GRANTED.

This case is

REMANDED to the Circuit Court of the Seventeenth Judicial Circuit in and for
Broward County.
2. Montanez’s request for attorneys’ fees and costs is DENIED.
3. The Clerk of Court is directed to CLOSE this case. All pending motions in this
matter are DENIED AS MOOT.
DONE AND ORDERED in Miami, Florida, this 12th day of June, 2017.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record

8