Messina v. Chanel, Inc.

Filing 31

ORDER Denying 7 Plaintiff's Motion for Remand. Signed by Judge Joan A. Lenard on 7/1/2011. (dpv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 10-24518-CIV-LENARD
VIVIAN MESSINA,
Plaintiff,
vs.
CHANEL, INC.,
Defendant.
________________________________/

ORDER DENYING PLAINTIFF’S MOTION FOR REMAND (D.E. 7)
THIS CAUSE is before the Court on Plaintiff Vivian Messina’s Motion for Remand
(D.E. 7), filed on December 21, 2010. Defendant Chanel, Inc., filed its Response in
Opposition to Plaintiff’s Motion (D.E. 12) on January 7, 2011, to which Plaintiff replied
(D.E. 13) on January 10, 2011. Defendant and Plaintiff then both filed supplemental
authority (D.E. 29 and 30) on May 13, 2011. Having reviewed the motion, response, reply,
supplemental authority and the record, the Court finds as follows:
I.

Factual and Procedural Background
This action involves claims that Defendant fired Plaintiff, one of its sales specialists,

in violation of the Florida Private Whistleblower Act (“FWA”), Florida Statute Section
448.101, et seq. On or about November 2, 2010, Plaintiff was fired by Defendant, allegedly
after she complained to Defendant’s management that she was being treated in a disparate
manner compared to younger, similarly situated employees. (See Compl. ¶ 2, D.E. 1-1.)

On November 23, 2010, Plaintiff, a Florida resident, filed suit in the Circuit Court of
the Eleventh Judicial Circuit in and for Miami-Dade County, Florida, alleging violation of
the FWA. (Id. ¶¶ 10-12.) Defendant is incorporated in New York with its principal place of
business there. (Not. of Removal ¶ 7, D.E. 1.) Plaintiff demands judgment against
Defendant under the FWA, limited to less than $75,000.00. (See Compl. ¶1 and Prayer for
Relief.)
Defendant removed to this Court on December 17, 2010, alleging diversity
jurisdiction under 28 U.S.C. § 1332(a). (Not. of Removal ¶ 5.) Defendant argues that
complete diversity of citizenship exists between the parties and the amount in controversy
is met. (Id. ¶ 10.) Defendant concedes that because Plaintiff makes a specific claim for
damages in her Complaint (Prayer for Relief), it bears the burden of showing to a legal
certainty that the amount in controversy is greater than $75,000. (Resp. at 3, citing Ponce
v. Fontainbleau Resorts, LLC, 653 F. Supp. 2d 1297 (S.D. Fla. 1297).)
Using Plaintiff’s latest salary, $9,590.14 per month, Defendant calculates that her lost
wages at estimated time of trial (in July 2012), as available to her under the FWA, would
amount to $172,622.52. (Resp. at 4-5; see Decl. of Daniel Rosenberg ¶ 6, D.E. 1-5.)
Defendant also notes that the FWA allows for attorney’s fees, further adding to the total. (Id.)
To further support its argument that amount in controversy is met, Defendant cites to
Plaintiff’s refusal to stipulate to a damages cap and Plaintiff’s deposition at which she
admitted she is seeking lost wages “easily in the six figures.” (See Resp. at 5-7; Not. of
Supp. Auth. at 2.)
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Plaintiff responds to Defendant’s arguments by reiterating her intent to limit her
claims “for any and all relief available to her,” including “fees, costs and damages/relief of
every kind as contemplated by § 448.103,” to less than $75,000. (Reply at 2; Pl.’s Supp.
Auth. at 1.) She cites to her deposition where she agrees to limit her wage claim to less than
$75,000. (Pl.’s Supp. Auth. at 1.)
II.

Discussion
“[W]hen an action is removed from state court, the district court first must

determine whether it has original jurisdiction over the plaintiff's claims.” Univ. of S. Ala.
v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999). “Federal courts are courts of
limited jurisdiction,” Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994), and
if “it appears that the district court lacks subject matter jurisdiction, the case shall be
remanded.” § 1447(c). The party attempting to invoke federal jurisdiction bears the
burden of establishing it. See McNutt v. Gen. Motors Acceptance Corp. of Indiana, 298
U.S. 178, 189 (1936); Miedema v. Maytag Corp., 450 F.3d 1322, 1329-30 & n.8 (11th
Cir. 2006). When the “plaintiff and defendant clash about jurisdiction, uncertainties are
resolved in favor of remand.” Burns, 31 F.3d at 1095.
The diversity statute requires that amount controversy exceed $ 75,000.00 to
establish federal jurisdiction. 28 U.S.C. 1332(c).1 Where a plaintiff asserts a specific
claim for damages in her ad damnum clause that is less than the jurisdictional amount, the

1

The parties do not dispute that complete diversity of citizenship exists in this case.
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defendant, in order to establish removal jurisdiction, must prove to a legal certainty that
plaintiff would not recover below the amount in controversy requirement. Burns, 31 F.3d
at 1097. Defendant acknowledges that this higher burden applies in this action. (See
Resp. at 3.)
Thus, to remain in federal court, Defendant must show that, “if plaintiff prevails on
liability, an award below the jurisdictional amount would be outside the range of
permissible awards because the case is clearly worth more than $[75,000].” Burns, 31
F.3d at 1096. The standard is an objective one; the subjective intent of plaintiff’s trial
counsel in drafting the ad damnum clause is not relevant. Id.
Defendant makes three showings in support of its contention that it can prove to a
legal certainty that Plaintiff would not recover less than $75,000 in this case: (1) its
calculations that her back pay through trial, based on her last annualized salary, would
greatly surpass $75,000; (2) Plaintiff’s counsel’s “gamesmanship” in refusing to stipulate
to, inter alia, a damages cap; and (3) Plaintiff’s deposition testimony that her claim is
easily into the six figures. In light of the Pretka v. Kolter City Plaza II, this Court may
consider such evidence in deciding a motion to remand. 608 F.3d 744 (11th Cir. 2010).
Upon review, the Court finds that Defendant has proved with legal certainty that Plaintiff,
if successful on liability, would recover more than the jurisdictional amount. Cf. Burns,
31 F.3d at 1096.
Defendant’s most convincing showings are the calculation of back pay, which at
time of trial will be $172,622.52 and Plaintiff’s own admission of the value of her claim.
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(Resp. at 4 (determining Plaintiff’s latest salary amounted to $9,590.14 per month and
multiplying that an estimated eighteen months until trial in this case); see Rosenberg
Decl. ¶ 6; Ex. to Supp. Auth. at 6.) No matter how her claims are couched, Plaintiff
considers her damages the lost wages she would have received while in Defendant’s
employ. (See Ex. to Supp. Auth. at 5-6.) As currently pled, she seeks to avail herself of
all damages and relief available under the FWA. The FWA allows for a variety of
damages, including legal and equitable relief (such as front pay) to make the Plaintiff
whole through time of judgment. See Fla. Stat. § 448.103(2). Thus, at time of trial,
currently scheduled for March 2012, it is certain that Plaintiff will have accrued over
$75,000 in lost wages.
In her motion and reply, Plaintiff makes no attempt to dispute these calculations,
instead maintaining that her prayer for relief specifically limits her recovery to $75,000
and citing the Ponce decision as controlling. (Mot. at 4; Reply at 1.) Nor does Plaintiff
contend that her subsequent employment (if it exists) and mitigation of damages should
be entitled to set-off. Even if she did, any set-off is “irrelevant at the jurisdictional stage.”
Taylor v. Air Atlanta Icelandic, 2011 U.S. Dist. LEXIS 37949, *6 (S.D. Fla. Mar. 25,
2011) (Cohn, J.). Consequently, the Court is left with only Defendant’s well-supported
calculation of lost wages.
Ponce, decided by a sister court in this District, is legally and factually
distinguishable from the instant case. Ponce follows Lowery v. Alabama Power Co., a
pre-Pretka decision which limited the materials a court could consider on a motion to
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remand. See Ponce, 653 F. Supp. 2d at 1304; see also Lowery, 483 F.3d 1184 (11th Cir.
2007). Ponce also cites the discretionary language of the statute under which plaintiffs
sued,2 as well as defendant’s unsupported assertion that plaintiffs earned only $25,000
yearly at termination, to find that defendant could not prove to a legal certainty that the
plaintiff would not receive more than the jurisdictional threshold. 653 F. Supp. 2d at
1305. Therefore, Ponce is not controlling to this case.
Finally, the Court notes Plaintiff’s refusal to stipulate to a damages cap but gives
this fact little weight. “The Eleventh Circuit has said that there are several reasons why a
plaintiff would not stipulate to the amount in controversy, so that a refusal to stipulate,
standing alone, does not satisfy the defendant’s burden of proof.” Mathew v. S&B
Engineers and Constructors, Ltd., 2009 U.S. Dist. LEXIS 108926, *5 (M.D. Fla., Jan. 9,
2009) (citing Williams v. Best Buy Co., Inc., 269 F.3d 1316, 1320 (11th Cir. 2001)).
Because Defendant has proven that the range of awards to Plaintiff would exceed
$75,000 to legal certainty, the amount in controversy requirement has been met and this
Court has jurisdiction over this action.
III.

Conclusion
Consistent with the foregoing, it is ORDERED AND ADJUDGED that Plaintiff

Vivian Messina’s Motion to Remand (D.E. 7), filed on December 21, 2010, is DENIED.

2

The Florida Civil Rights Act, Fla. Stat. § 760.11(5).
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DONE AND ORDERED in Chambers at Miami, Florida, this 1st day of July,
2011.

_________________________________
JOAN A. LENARD
UNITED STATES DISTRICT JUDGE

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