Castillo et al v. GEOVERA SPECIALTY INSURANCE COMPANY
Filing
3
Order Remanding Case to State Court Closing Case. Signed by Judge Beth Bloom on 1/7/2021. See attached document for full details. (cds)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 21-cv-20059-BLOOM/Otazo-Reyes
JENNIFER CASTILLO and
ALAIN SANCHEZ,
Plaintiffs,
v.
GEOVERA SPECIALTY INSURANCE
COMPANY,
Defendant.
_________________________________/
ORDER REMANDING CASE
THIS CAUSE is before the Court upon a sua sponte review of Defendant’s Notice of
Removal, ECF No. [1] (“Notice”), and Plaintiffs’ Complaint (“Complaint”), ECF No. [1-1] at 79, which was removed from the Eleventh Judicial Circuit in and for Miami-Dade County, Florida
to this Court. For the reasons set forth below, the Court finds that Defendant has failed to establish
the existence of subject matter jurisdiction in this case.
“Federal courts are courts of limited jurisdiction. They possess only that power authorized
by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen v. Guardian
Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citations omitted). “It is to be presumed
that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests
upon the party asserting jurisdiction.” Id. (citing Turner v. Bank of N. Am., 4 U.S. (4 Dall.) 8, 11
(1799) and McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 182-183 (1936)). A “district
court may act sua sponte to address the issue of subject matter jurisdiction at any time.” Herskowitz
v. Reid, 187 F. App’x 911, 912-13 (11th Cir. 2006). This is because federal courts are “‘empowered
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to hear only those cases within the judicial power of the United States as defined by Article III of
the Constitution,’ and which have been entrusted to them by a jurisdictional grant authorized by
Congress.” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 409 (11th Cir. 1999) (quoting Taylor
v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994)). Accordingly, “once a federal court determines
that it is without subject matter jurisdiction, the court is powerless to continue.” Id. at 410.
In the Notice, Defendant asserts that this Court has diversity jurisdiction over Plaintiffs’
claims pursuant to 28 U.S.C. § 1332. ECF No. [1]. “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 $75,000.00. 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) (citing
Williams v. Best Buy Co., Inc., 269 F.3d 1316, 1319 (11th Cir. 2001)); 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),
abrogated on other grounds by Dudley v. Eli Lilly & Co., 778 F.3d 909 (11th Cir. 2014). “If the
jurisdictional amount is not facially apparent from the complaint, the court should look to the
notice of removal and may require evidence relevant to the amount in controversy at the time the
case was removed.” Id. (citation omitted). Even so, “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
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at 754 (citations omitted). “Where, as in this case, the complaint alleges an unspecified amount of
damages, ‘the district court is not bound by the plaintiff’s representations regarding its claim,’ and
may review the record for evidence relevant to the amount in controversy.” DO Rests., Inc. v.
Aspen Specialty Ins. Co., 984 F. Supp. 2d 1342, 1344 (S.D. Fla. 2013) (citing Roe v. Michelin N.
Am., Inc., 613 F.3d 1058, 1061 (11th Cir. 2010)). Moreover, “defendants may submit a wide range
of evidence in order to satisfy the jurisdictional requirements of removal,” including “affidavits,
declarations, or other documentation.” Pretka, 608 F.3d at 755. The Court may also use its judicial
experience and make reasonable inferences and deductions to determine the amount in
controversy. See Roe, 613 F.3d at 1061-62; Pretka, 608 F.3d at 754 (discussing the difference
between reasonable deductions and inferences with “conjecture, speculation, or star gazing”);
E.S.Y., Inc. v. Scottsdale Ins. Co., 217 F. Supp. 3d 1356, 1360 (S.D. Fla. 2015). “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., No. 8:16-cv-306-T-24 JSS, 2016 WL
1445089, at *1 (M.D. Fla. Apr. 13, 2016) (citing Burns v. Windsor, 31 F.3d 1092, 1095 (11th Cir.
1994)).
The Court first reviews the allegations in the Complaint – the operative pleading – to
determine whether the amount in controversy is satisfied. Plaintiffs’ Complaint asserts claims for
damages sustained as a result of Hurricane Irma, and Defendant’s failure to provide coverage
pursuant to an insurance policy. Significantly, in the first paragraph of the Complaint, Plaintiffs
allege only that: “[t]his is an action for damages greater than the sum of THIRTY THOUSAND
DOLLARS, exclusive of interest, costs, and attorney’s fees . . . .” ECF No. [1-1] at 7, ¶ 1. As
such, it is not facially apparent from the Complaint that the amount in controversy is satisfied.
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Because Plaintiffs do not plead a specific amount of damages, the Court next looks at the
Notice to determine whether the amount in controversy is satisfied, mindful that it is Defendant’s
burden to establish subject matter jurisdiction. Defendant contends that the amount in controversy
is satisfied because Plaintiffs have provided a repair estimate totaling $61,416.83, and Plaintiffs
have made a demand for $100,000.00 inclusive of attorney’s fees and costs under Florida Statutes
§ 627.428. In addition, Defendant asserts that because Plaintiffs seek to recover attorney’s fees,
the Court may include such fees in the amount in controversy and conclude that a reasonable
attorney’s fee in this case would easily exceed the amount necessary to satisfy the amount in
controversy. The Court disagrees.
“The general rule is that attorneys’ fees do not count towards the amount in controversy
unless they are allowed for by statute or contract.” Federated Mut. Ins. Co. v. McKinnon Motors,
LLC, 329 F.3d 805, 808 n.4 (11th Cir. 2003) (citing Graham v. Henegar, 640 F.2d 732, 736 (5th
Cir. 1981)); Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1265 (11th Cir. 2000) (“When a
statute authorizes the recovery of attorney’s fees, a reasonable amount of those fees is included in
the amount in controversy.”); see also Mo. State Life Ins. Co. v. Jones, 290 U.S. 199, 202 (1933).
However, “when the amount in controversy substantially depends on a claim for attorney fees, that
claim should receive heightened scrutiny.” Cohen v. Office Depot, Inc., 204 F.3d 1069, 1080 n.10
(11th Cir. 2000).
Although the Eleventh Circuit has explained that, “[w]hen a statute authorizes the recovery
of attorney’s fees, a reasonable amount of those fees is included in the amount in controversy,”
Morrison, 228 F.3d at 1265, it has not yet clarified whether the amount of attorney’s fees included
in the amount in controversy is the amount accrued at the time of removal or the prospective
amount of attorney’s fees required to litigate the entire case. This issue of including statutory
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attorney’s fees in the amount in controversy has caused a split in district courts within the Eleventh
Circuit. See Bender v. GEICO Gen. Ins. Co., No. 8:17-cv-872-T-33TBM, 2017 WL 1372166, at
*1 (M.D. Fla. Apr. 17, 2017) (discussing the divide among courts in this Circuit “over whether to
include the projected amount of attorney’s fees or only attorney’s fees as of the time of removal”
(citations omitted)); Brown v. Am. Exp. Co., Inc., No. 09-61758-CIV, 2010 WL 527756, at *7
(S.D. Fla. Feb. 10, 2010) (discussing the “[c]onflicting case law [that] exists as to whether the
amount of attorney’s fees for the amount-in-controversy analysis should be calculated as of the
date of removal or through the end of the case” (citations omitted)).
Despite this split, many district courts across Florida have calculated these statutorily
authorized attorney’s fees as those accrued at the time of removal, especially in determining
whether federal jurisdiction exists.1 This conclusion is in line with Eleventh Circuit precedent
establishing that “[j]urisdictional facts are assessed on the basis of plaintiff's complaint as of the
time of removal. . . . That plaintiff might ask for or recover more after removal is not sufficient to
support jurisdiction.” Burns, 31 F.3d at 1097 n.13 (citations omitted). In addition, calculating
attorney’s fees as of the time of removal comports with “the general rule that post-removal events,
such as the subsequent generation of attorney fees, cannot create jurisdiction that was lacking at
the outset.” Lott & Friedland, P.A., 2010 WL 2044889, at *4 (citing Rogatinsky, 2009 WL
3667073, at *3 (“post-removal events . . . will not retroactively establish subject-matter
jurisdiction.”)); Waltemyer, 2007 WL 419663, at *2 (“While attorney fees through the conclusion
of the litigation are included when the action is filed initially in federal court, there is no reason to
1
See Frisher v. Lincoln Benefit Life Co., No. 13-20268-CIV, 2013 WL 12092525, at *2 (S.D. Fla. Aug. 19,
2013); Gold v. Traveler Indem. Co., No. 12-80036-CIV, 2012 WL 13019199, at *2 (S.D. Fla. Mar. 29,
2012); Lott & Friedland, P.A. v. Creative Compounds, LLC, No. 10-20052-CV, 2010 WL 2044889, at *4
(S.D. Fla. Apr. 21, 2010); Rogatinsky v. Metropolitan Life Ins. Co., No. 09-80740-CIV, 2009 WL 3667073,
at *3 (S.D. Fla. Oct. 26, 2009); Waltemyer v. Nw. Mut. Life Ins. Co., No. 2:06-cv-597-FtM-29DNF, 2007
WL 419663, at *2 (M.D. Fla. Feb. 2, 2007).
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deviate from the general rule that in a removed case the amount in controversy is determined as of
the time of removal and the court cannot rely on post-removal events in examining its subject
matter jurisdiction.” (citing Morrison, 228 F.3d at 1265; Poore v. Am.-Amicable Life Ins. Co. of
Tex., 218 F.3d 1287, 1290-91 (11th Cir. 2000)), overruled on other grounds by Alvarez v. Uniroyal
Tire Co., 508 F.3d 639, 640 (11th Cir. 2007)).
Therefore, the amount in controversy does not include highly speculative, prospective
amounts of attorney’s fees, but rather includes only those fees accrued as of the time of removal.
Gold, 2012 WL 13019199, at *2 (“The Seventh Circuit . . . , considered this issue and ruled that
the amount in controversy calculation should not include ‘the value of legal services that have not
been and may never be incurred’ because the amount of legal fees are not ‘in controversy’ until
they are accrued.” (quoting Gardynski-Leschuck v. Ford Motor Co., 142 F.3d 955, 958 (7th Cir.
1998))). Here, other than Defendant’s conclusory assertion that a reasonable attorney’s fee would
easily exceed the amount necessary to satisfy the amount in controversy, Defendant has provided
no evidence of the amount of fees incurred by Plaintiffs to date.
Moreover, Defendant may not rely exclusively on Plaintiffs’ cursory $100,000.00 demand
to satisfy its burden in this case. “[E]vidence of a settlement demand in excess of $75,000 may
constitute evidence that the jurisdictional requirement has been met.” Wrubel v. Safeco Ins. Co. of
Ill., 266 F. Supp. 3d 1372, 1374 (S.D. Fla. 2017). This is especially so where the demand contains
specific and corroborating evidence reflecting an honest assessment of damages rather than mere
puffing and posturing. Moses v. Home Depot U.S.A., Inc., No. 13-60546-CIV, 2013 WL 11977917,
at *3 (S.D. Fla. June 19, 2013); see also Shields v. Fresh Mkt., Inc., No. 19-CV-60725, 2019 WL
1648974, at *2 (S.D. Fla. Apr. 17, 2019) (explaining that while a “demand letter, standing alone,
may not be enough to satisfy the jurisdictional amount,” when it is “combined with” supporting
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documentation, it can establish the amount in controversy); Wilson v. Target Corp., No. 10-80451CIV, 2010 WL 3632794, *4 (S.D. Fla. Sept. 14, 2010) (detailed pre-suit demand letter delineated
the extent of the alleged injuries, the physicians who had treated the plaintiff, and the medical care
received from each of those physicians which could be considered reliable evidence that damages
exceeded $75,000.00); Katz v. J.C. Penney Corp., Inc., No. 09-CV-60067, 2009 WL 1532129, *5
(S.D. Fla. June 1, 2009) (the amount in controversy was met where Plaintiff had made a pre-suit
demand, based on medical reports, in the amount of $58,995.78 in current medical expenses and
$39,800.00 in future medical expenses); Livolsi v. State Farm Mut. Auto. Ins. Co., No. 17-CV80407, 2017 WL 7792572, at *2 (S.D. Fla. June 30, 2017) (remand avoided based, in part, on
demand letter that “is specific and details past and future medical expenses” exceeding the
jurisdictional threshold). Here, Plaintiffs’ demand contains no detailed basis or evidentiary
support. Rather, the demand was made in an e-mail, in which counsel simply states: “Initial
Demand: 100,000 (inclusive of attorney’s fees and cost).” ECF No. [1] at 63.
Upon review, the Court finds that Defendant’s Notice is facially deficient in that it fails to
demonstrate that the $75,000.00 amount-in-controversy requirement has been satisfied. The Court,
therefore, concludes that diversity jurisdiction is lacking, rendering it without subject matter
jurisdiction to preside over Plaintiffs’ claims.
Accordingly, it is ORDERED AND ADJUDGED that this case is REMANDED to the
Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida. The Clerk
of Court is directed to CLOSE this case.
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Case No. 21-cv-20059-BLOOM/Otazo-Reyes
DONE AND ORDERED in Chambers at Miami, Florida, on January 7, 2021.
_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record
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