ALAC Enterprises, Inc. v. Geico Marine Insurance Company

Filing 4

Order Remanding Case to State Court. Closing Case. Signed by Judge Beth Bloom on 7/28/2022. See attached document for full details. (drz) Modified on 7/29/2022 re: corrected Document Type. (jmd)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 22-cv-22341-BLOOM/Otazo-Reyes
ALAC ENTERPRISES, INC.,
Plaintiff,
v.
GEICO MARINE 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 Plaintiff’s Complaint (“Complaint”), ECF No. [1-1] at 612. The case 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
to hear only those cases within the judicial power of the United States as defined by Article III of

Case No. 22-cv-22341-BLOOM/Otazo-Reyes
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.
“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
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.

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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)).
Defendant asserts that this Court has diversity jurisdiction over Plaintiff’s claims pursuant
to 28 U.S.C. § 1332. See ECF No. [1] ¶ 5. The Court first reviews the allegations in the Complaint
to determine whether the amount in controversy is satisfied. Plaintiff’s Complaint asserts claims
for damages sustained as a result of Defendant’s failure to provide coverage pursuant to an
insurance policy on Plaintiff’s vessel. Significantly, in the first paragraph of the Complaint,
Plaintiff alleges that: “[t]his is an action for damages in excess of $30,000.00 . . . .” ECF No. [11] at 6, ¶ 1. As such, it is not facially apparent from the Complaint that the amount in controversy
is satisfied.
Because Plaintiff does 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

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is satisfied in part because the vessel in question was insured for actual cash value, and at the time
of the loss, the actual cash value of the vessel was approximately $38,000.00. See ECF No. [1]
¶ 16. In addition, Defendant submits that Plaintiff will presumably seek to recover attorney’s fees
under Fla. Stat. § 627.428(1), and the Court may include such fees in the amount in controversy.
See id. ¶¶ 13-14. Defendant notes that Plaintiff has claimed, in a related case, to have suffered
damages “in the amount of the principal amount outstanding on the Note $41,137.68, plus the
broker’s fee, interest, attorney’s fees, and costs.” Id. ¶ 23 (emphasis added). Defendant further
avers that Plaintiff’s counsel likely incurred attorney’s fees of at least $37,000.01 in this case and
related cases, given that Defendant’s counsel has incurred $60,000.00 in this case and related cases.
See id. ¶¶ 26-27. As such, Defendant claims that the Court can conclude that the demand for
reasonable attorney’s fee and the actual cash value of the vessel 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).
Here, other than Defendant’s conclusory assertion that reasonable attorney’s fees combined
with the actual cash value of the vessel would exceed the amount necessary to satisfy the amount

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in controversy based on Defendant’s counsel’s fees to date in this case and related cases, Defendant
has provided no evidence of the amount of attorney’s fees incurred by Plaintiff to date in this case
or related cases. Further, the Court is unaware of, and Defendant fails to cite, any legal authority
establishing that attorney’s fees in related cases can be used to satisfy the amount in controversy
in this case. Defendant seeks to remove this case, not related cases.
Thus, 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 Plaintiff’s 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.
DONE AND ORDERED in Chambers at Miami, Florida, on July 28, 2022.

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

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