The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DENNIS KINSEY,
Plaintiff,
v. Case No.: 8:19-cv-2658-T-33TGW
HUSQVARNA CONSTRUCTION PRODUCTS
NORTH AMERICA, INC.,
Defendant.
/
ORDER
This cause comes before the Court sua sponte. For the
reasons that follow, this case is remanded to state court for
lack of subject matter jurisdiction.
I. Background
Plaintiff Dennis Kinsey initiated this Florida Civil
Rights Act (FCRA) action in state court on May 23, 2019,
alleging sex discrimination and harassment as well as
retaliation against his former employer, Defendant Husqvarna
Construction Products North America, Inc. (Doc. # 1-1).
Husqvarna removed the case to this Court on October 25, 2019,
based on Kinsey’s responses to Husqvarna’s first set of
interrogatories. (Doc. # 1).
That same day, the Court entered an Order (Doc. # 3)
explaining that it was not convinced that the amount in
controversy requirement had been satisfied by a preponderance
of the evidence. Husqvarna filed a response to the Court’s
Order on November 1, 2019. (Doc. # 4).
II. Discussion
“Federal courts have limited subject matter
jurisdiction.” Morrison v. Allstate Indem. Co., 228 F.3d
1255, 1260–61 (11th Cir. 2000). Before delving into the merits
of any case, this Court must determine “whether subject-
matter jurisdiction exists, even in the absence of a challenge
from any party.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514
(2006). Indeed, “it is well settled that a federal court is
obligated to inquire into subject matter jurisdiction sua
sponte whenever it may be lacking.” Univ. of S. Ala. v. Am.
Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999). “Without
jurisdiction the court cannot proceed at all in any
cause.” Id.
In removed cases, 28 U.S.C. § 1447(C) specifies: “If at
any time before final judgment it appears that the district
court lacks subject matter jurisdiction, the case shall be
remanded.” “Any doubt as to propriety of removal should be
resolved in favor of remand to state court.” Tauriga Scis.,
Inc. v. ClearTrust, LLC, No. 8:14-cv-2545-T-33TBM, 2014 WL
5502709, at *2 (M.D. Fla. Oct. 30, 2014)(citing Butler v.
Polk, 592 F.2d 1293, 1296 (5th Cir. 1979)).
This action was removed to this Court on the basis of
diversity jurisdiction. (Doc. # 1). When jurisdiction is
premised upon diversity of citizenship, 28 U.S.C. § 1332(a)
requires, among other things, that “the matter in controversy
exceeds the sum or value of $75,000, exclusive of interests
and costs.” 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.”
Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir.
2001). When “damages are unspecified, the removing party
bears the burden of establishing the jurisdictional amount by
a preponderance of the evidence.” Lowery v. Ala. Power Co.,
483 F.3d 1184, 1208 (11th Cir. 2007).
The Complaint does not allege a specific amount of
damages. (Doc. # 1-1 at 1). Instead, Husqvarna relies on
Kinsey’s answers to interrogatories from September 25, 2019,
(Doc. # 1-6), and the allegations of the Complaint.
Specifically, Husqvarna argues that the amount in controversy
is met because Kinsey’s back pay, front pay, compensatory
damages for emotional distress, attorney’s fees, and punitive
damages combined exceed $75,000. (Doc. # 4). The Court is not
convinced by Husqvarna’s calculation of the amount in
controversy.
The Court does credit Husqvarna’s calculation of
Kinsey’s back pay, which Kinsey listed in his answers to
interrogatories along with a sufficient explanation of his
calculation up to the date of September 10, 2019 — six weeks
before this case was removed. (Doc. # 1-6 at 7; Doc. # 4).
Thus, Husqvarna has established that the amount in
controversy is at least $53,021.53 as of the date of removal.
(Doc. # 4 at 2). Yet, this amount falls far short of the
$75,000 threshold.
As the Court already explained in its Order directing
Husqvarna to file more information, the Court will not include
the $55,000 in front pay Kinsey listed in his answers to
interrogatories in the amount in controversy calculation.
(Doc. # 3). This amount is purely speculative and
“[s]peculation regarding front pay cannot be used to
supplement insufficient back pay for the purpose of meeting
the jurisdictional requirement.” Avery v. Wawa, Inc., No.
8:18-cv-403-T-33TGW, 2018 WL 1008443, at *3 (M.D. Fla. Feb.
22, 2018); see also Brown v. Am. Express Co., No. 09-61758-
CIV, 2010 WL 527756, at *5 (S.D. Fla. Feb. 10, 2010)(removing
defendant suggested that one year of the plaintiff’s base
salary — $30,010.00 — was reasonable to include in the amount
in controversy analysis, but the court found that to “include
this figure in calculating the amount in controversy would
require this Court to ‘engage in impermissible
speculation’”).
Regarding attorney’s fees, Husqvarna insists the Court
should assume that Kinsey’s attorney’s fees up to the time of
removal are at least $9,000. (Doc. # 4 at 4). But Husqvarna
is merely speculating and provides no information about the
attorney’s fees Kinsey actually incurred before removal.
Thus, the Court will not include this amount in the amount in
controversy calculation.
And the Complaint does not specify the amount of
compensatory damages sought. While Kinsey’s answers to
interrogatories state that he has been prescribed medication
for anxiety and depression (Doc. # 1-6 at 9), no further
detail on the extent of the emotional distress Kinsey suffered
as a result of the alleged discrimination is provided that
would allow the Court to estimate the compensatory damages.
See Mathew v. S & B Eng’rs and Constr., Ltd., No. 8:08–cv–
1801–T–33TGW, 2009 WL 249931 (M.D. Fla. Jan. 30,
2009)(holding that plaintiff’s claim for unspecified
compensatory damages, her back pay damages of approximately
$66,000, and evidence of her failure to stipulate regarding
the jurisdictional amount were insufficient to establish the
jurisdictional amount). And Husqvarna has presented no
additional evidence regarding Kinsey’s specific emotional
distress or suffering. (Doc. # 4 at 2-3). The Court is not
persuaded that the other FCRA cases cited by Husqvarna
establish that Kinsey has actually suffered tens of thousands
of dollars’ worth of emotional distress as a result of
Husqvarna’s actions. Cf. Bragg v. Suntrust Bank, No. 8:16-
cv-139-T-33TBM, 2016 WL 836692, at *2 (M.D. Fla. Mar. 4,
2016)(“SunTrust cites to three prior employment
discrimination cases in which plaintiffs were awarded damages
in excess of $75,000 for mental anguish, [] but does not
explain why that amount would be awarded in this case.”
(emphasis in original)).
Because the record is devoid of sufficient allegations
regarding Kinsey’s distress and Husqvarna failed to provide
additional information about his distress, the Court cannot
reasonably determine what amount of compensatory damages
should be included in the amount in controversy. Cf. Golden
v. Dodge-Markham Co., 1 F. Supp. 2d 1360, 1366 (M.D. Fla.
1998)(“Compensatory damages are extremely nebulous. Making a
general blanket statement that, if Plaintiff prevails,
compensatory damages could certainly entitle him to thousands
of dollars, does not rise to the levels of proving, by a
preponderance of the evidence, that the amount in controversy
exceeds $75.000.00.”). Therefore, the Court will not include
an amount of compensatory damages in its calculation.
Finally, concerning punitive damages, Husqvarna again
provides only speculation. Husqvarna argues that $10,000 in
punitive damages should be included in the amount in
controversy calculation. (Doc. # 4 at 3). In support,
Husqvarna cites to one FCRA case where the district court
held that a “conservative estimate” of $10,000 in punitive
damages should be included in the amount in controversy
calculation. (Id.). But this Court disagrees that it is
appropriate to include $10,000 in punitive damages, given
that Husqvarna has provided no information suggesting that
such award of punitive damages is likely in this case.
Therefore, an estimation of punitive damages is overly
speculative and will not be included in the Court’s amount in
controversy calculation. But, even if the Court were to add
$10,000 in punitive damages to the $53,021.53 in estimated
back pay up to the time of removal, the amount in controversy
would still be less than $75,000.
In short, the Court is not convinced by a preponderance
of the evidence that the amount in controversy exceeds
$75,000. Therefore, Husqvarna has not carried its burden of
establishing this Court’s diversity jurisdiction. The Court,
finding that it lacks subject matter jurisdiction, remands
this case to state court.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
Because the Court lacks subject matter jurisdiction, the
Clerk is directed to REMAND this case to state court and,
thereafter, CLOSE this case.
DONE and ORDERED in Chambers in Tampa, Florida, this 5th
day of November, 2019.
fags fr _ Heenephy (neh
VIRGINIA M. HERNANDEZ’COVINGTON
UNITED STATES DISTRICT JUDGE